Hague Convention on International Child Abduction an analysis of the applicable law and institutional framework of fifty-one jurisdictions and the European Union

The Law Library of Congress
REPORT FOR CONGRESS
June 2004
Directorate of Legal Research
LL File No. 2004- 92
HAGUE CONVENTION ON
INTERNATIONAL CHILD ABDUCTION
An analysis of the applicable law and institutional framework of fifty- one jurisdictions and the
European Union.
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THE LIBRARY OF CONGRESS
WASHINGTON, D. C. 20540
LAW LIBRARY Tel.: ( 202) 707- 9148
DIRECTORATE OF LEGAL RESEARCH Fax: ( 202) 707- 1820
June 22, 2004
Honorable Richard G. Lugar, Chairman
Honorable Joseph R. Biden, Jr., Ranking Member
Senate Committee on Foreign Relations
Dirksen Senate Office Building
Washington, D. C. 20510- 6225
Dear Senator Lugar and Senator Biden:
In response to your request for the Law Library of Congress to update our previous report
of August 2000 on the Hague Convention ( No. 28, 1980) on the Civil Aspects of International
Child Abduction, it is my pleasure to transmit to you an updated and significantly expanded series
of comparative analyses that provide a detailed introduction to the Hague Convention No. 28, a
discussion of the implications of relevant European Union regulation, and fifty- one national reports
that detail the applicable law and institutional framework applicable to the Hague Convention No.
28 in those countries.
This Convention has been recognized by some as one of the most successful of the more
than forty Hague Conventions that have been coordinated and drafted by the Hague Conference on
Private International Law, an intergovernmental organization that works toward the progressive
unification of private international law. Certainly few issues are more important than ensuring that
the best interests of children are addressed when custodial relationships are complicated by
transnational boundaries.
The Law Library staff of foreign law attorneys and analysts who prepared these analyses
take great pride in serving as the legal research arm of the United States Congress. Although there
are too many of them to recognize by name here, they are identified in the table of contents and at
the end of their respective works. The four additional members of our staff who deserve great
credit for the editing and assembly of this report are Jamie Martin, our Editor; Irene Chang, our
Directorate Secretary; Lisa Ann Tekancic, my Administrative Assistant; and Kersi Shroff, the
Chief of our Western Law Division. On behalf of Dr. Rubens Medina, the Law Librarian of
Congress, we hope that this report will assist the Committee in its important work.
Respectfully submitted,
WALTER GARY SHARP, SR.
Director of Legal Research
ii
NOTE ON METHODOLOGY
The Senate Committee on Foreign Relations requested the Law Library of Congress to update
its previous report of August 2000 on the Hague Convention ( No. 28, 1980) on the Civil Aspects of
International Child Abduction, and to add, to the extent possible, reports on all of those jurisdictions
that are recognized by the United States as parties to the Convention. Of the seventy- nine
jurisdictions ( not including the United States) that are a party to the Hague Convention No. 28 as of
May 4, 2004, the United States recognizes fifty- nine jurisdictions as a party; this series of
comparative analyses includes reports on forty- nine of those fifty- nine jurisdictions. It also provides
a detailed introduction, a discussion of the implications of relevant European Union regulation,
analyses on two additional jurisdictions ( Belarus and Georgia) not recognized as a party by the United
States, a chart that provides the dates for entry into force for the eighty parties, a detailed
bibliography, and the text of the Convention.
The remaining ten jurisdictions recognized by the United States as a party that are not
addressed in this report were omitted, because the Law Library did not have either the expertise on
staff or the collections available to prepare a report, or because the party has done very little or
nothing to implement the Hague Convention No. 28. Appendix A identifies those parties to the
Hague Convention No. 28 that are not covered by this report. It is also important to note that the
enclosed report on Denmark was not updated from our previous report of August 2000 because we no
longer have a Nordic law specialist on staff.
Finally, most reports contain Uniform Resource Locator ( URL) references and citations to
websites that are not part of the loc. gov domain. These URLs are provided to cite authority to the
source of information that we have relied upon to prepare the report and as a convenience for the
reader; however, some of these online references may link to subscription services not generally
available to the public or may not be maintained by the originators.
TABLE OF CONTENTS
LETTER OF TRANSMITTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
NOTE ON METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION Wendy Zeldin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
IMPLICATIONS OF EUROPEAN UNION REGULATION Theresa Papademetriou . . . . . . . . 9
COUNTRIES PARTY TO THE CONVENTION IN THIS REPORT
ARGENTINA Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
AUSTRALIA Kersi B. Shroff and Donald DeGlopper . . . . . . . . . . . . . . . . . . . . . . . 23
AUSTRIA Edith Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
BAHAMAS Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
BELARUS, REPUBLIC OF Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
BELGIUM George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
BELIZE Krishan Nehra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
BERMUDA Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
BOSNIA AND HERZEGOVINA Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
BRAZIL Fernanda C. A. Freitas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
CANADA Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
CAYMAN ISLANDS Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
CHILE Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
COLOMBIA Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
CROATIA, REPUBLIC OF Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
CYPRUS Theresa Papademetriou . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
CZECH REPUBLIC George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
DENMARK Fariborz Nozari . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
ECUADOR Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
FALKLAND ISLANDS Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
FRANCE Nicole Atwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
GEORGIA, REPUBLIC OF Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
GERMANY Edith Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
GREECE Theresa Papademetriou . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
HONDURAS Norma C. Gutierrez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
HONG KONG Mya Saw Shin, Tao- tai Hsia, and Constance A. Johnson . . . . . . . . . . 183
HUNGARY Kersi B. Shroff and Karla Walker . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
IRELAND, REPUBLIC OF Kersi B. Shroff and Diana Frazier Miller . . . . . . . . . . . 195
ISLE OF MAN Kersi B. Shroff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
ISRAEL Ruth Levush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
ITALY Giovanni Salvo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
LUXEMBOURG George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
MACEDONIA, REPUBLIC OF Suren Avanseyan . . . . . . . . . . . . . . . . . . . . . . . . 233
MALTA Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
MEXICO Gustavo E. Guerra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
MONACO Nicole Atwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
MONTSERRAT Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
THE NETHERLANDS Karel Wennink . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
NEW ZEALAND Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
PANAMA Norma C. Gutierrez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
POLAND Bozena Sarnecka- Crouch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
PORTUGAL Fernanda C. A. Freitas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
SAINT KITTS AND NEVIS Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . 297
SLOVAK REPUBLIC George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
SOUTH AFRICA Belma Bayar and Ruth Levush . . . . . . . . . . . . . . . . . . . . . . . . . 305
SPAIN Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
SWEDEN Mikaela Neijd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
SWITZERLAND Edith Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
UNITED KINGDOM Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
VENEZUELA Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
ZIMBABWE Charles Mwalimu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
APPENDICES
A. CHART OF COUNTRIES PARTY TO CONVENTION . . . . . . . . . . . . . . . . . 361
B. BIBLIOGRAPHY Wendy Zeldin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
C. TEXT OF THE HAGUE CONVENTION ON CHILD ABDUCTION . . . . . . . . . 375
1 Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 1, T. I. A. S. No. 11,670, 1343 U. N. T. S. 89.
For an online text, see for example www. hcch. net or the United States Department of State ( DOS) Bureau of Consular Affairs website, at
http:// travel. state. gov/ hague_ childabduction. html. Wrongful removal is defined in art. 3 of the 1980 Convention; art. 4 deals with the children
to which it applies.
2 The website of the Permanent Bureau ( secretariat) of the Hague Conference on Private International Law maintains a list of Member
States of the 1980 Convention and has abundant related material. That list has 74 jurisdictions; it counts Hong Kong and Macao as one entry
under “ China” and does not separate out the five overseas territories/ crown dependency of the United Kingdom, hence the difference of 6 parties
compared with the Law Library count. The Permanent Bureau also has been developing the International Child Abduction Statistical Database
( INCASTAT), an electronic database containing annual statistics from many of the states parties to the 1980 Convention. For a description,
see Permanent Bureau, Information Document, Preliminary Document No. 10 of July 2002 for the Attention of the Special Commission of
September/ October 2002. In 1999, the Hague Conference established INCADAT, a database of significant decisions contributed by some of
the Member States, chiefly in the form of summaries of leading child abduction cases but many with the full text of the case attached. The
bilingual ( English and French) database is at www. incadat. com.
The U. S. DOS maintains a list of states parties with the United States and provides some individual reports on relevant laws on
children of both member and non- member countries.
3 Ernie Allen, foreword to International Forum on Parental Child Abduction: Hague Convention Action Agenda ( a report by Prof.
Nigel Lowe, Director of the Centre for International Family Law Studies, Cardiff University, Wales, United Kingdom) iii ( Apr. 1999),
www. pact- online. org/ pdf/ forum_ report. pdf. The Forum was held Sept. 15- 16, 1998. The report was apparently sponsored by the National
Center for Missing & Exploited Children ( NCMEC), a national clearing house and resource center funded under a cooperative agreement from
2004- 92
LAW LIBRARY OF CONGRESS
INTRODUCTION
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
The Hague Convention on the Civil Aspects of International Child Abduction is an
intergovernmental agreement reached at The Hague on October 25, 1980 ( Hague No. 28, hereinafter the
1980 Convention), by the Hague Conference on Private International Law ( HCPIL). It entered into force
on December 1, 1983, and governs issues related to parental kidnapping or the removal of children under
the age of 16 across international borders and involving the jurisdiction of different countries’ courts. The
1980 Convention has the stated objectives of securing the prompt return of children wrongfully removed
to or retained in any contracting state and of ensuring that the rights of custody and of access under the
law of one contracting state are effectively respected in the other contracting states. 1
As of January 2004, there were 80 Member States of the 1980 Convention. Of these, the
accessions of 59 have been accepted by the United States, the most recent one being Brazil ( see appended
Chart). Under the current review process of the U. S. Department of State ( DOS) affecting the twenty
contracting states whose accession has not yet been accepted by the United States, the DOS is expediting
acceptance in the sequential order of their joining the 1980 Convention. Non- Member States of the 1980
Convention include primarily Middle Eastern, African, Asian, and Central Asian countries or territories. 2
I. Member States: Issues and Problems
Although the 1980 Convention may be considered a milestone in the uniform treatment of cases
of international child abduction and it has been hailed as one of the most successful Hague Conventions,
some inherent weaknesses in the agreement have meant that it has not always worked as intended. Non-
Governmental Organizations ( NGOs) have also criticized the 1980 Convention, or the Central Authorities
responsible for its domestic implementation, for allowing many cases to remain unresolved and their
numbers to be underestimated. 3
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the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U. S. Dept. of Justice. Mr. Allen was President and Chief
Executive Officer of the NCMEC at the time the report was produced. In 1999, the Center established the International Centre for Missing &
Exploited Children, to serve as a global resource center with an international network.
4 Gloria Folger DeHart, The Relationship Between the 1980 Child Abduction Convention and the 1996 Protection Convention, 33
N. Y. U. J. INT’L L. & POL. 83 ( 2000); abstract by Caylin E. DeBlasio, available at http:// www. nyu. edu/ pubs/ jilp/ main/ issues/ 33/ f. html, with
hyperlink to full text. Ms. DeHart was an Attorney Adviser with the Office of the Assistant Legal Adviser for Private International Law, United
States Department of State, and U. S. Delegate to the Hague Conference on Private International Law for the development of the 1996 Protection
of Children Convention at the time the article was written. For other views of the 1980 Convention see for example in the same journal issue:
Thomas A. Johnson, The Hague Child Abduction Convention: Diminishing Returns and Little to Celebrate for Americans, id. at 125, via
http:// www. nyu. edu/ pubs/ jilp/ main/ issues/ 33/ f. html, and Carol S. Bruch, Religious Law, Secular Practices, and Children’s Human Rights in
Child Abduction Cases Under the Hague Child Abduction Convention, id. at 49, via http:// www. nyu. edu/ pubs/ jilp/ main/ issues/ 33/ d. html. Some
additional papers are also available via Australia’s Family Court website, at http:// www. familycourt. gov. au/ papers/ html/ child_ abduction. htm.
5 Linda Silberman, The Hague Child Abduction Convention Turns Twenty: Gender Politics and Other Issues, 33 N. Y. U. J. INT’L L.
& POL. 221 ( 2000).
6 Id.
With regard to Member States, problem areas can be categorized as those related to compliance
( e. g., differing interpretations of the 1980 Convention or insufficiently trained judges) and those related
to non- compliance ( e. g., non- enforcement of procedures, refusal to return children).
A. Problems Related to Compliance
It has been argued that attempts by the 1980 Convention to provide for cultural neutrality in
abduction disputes may be undermined by subjective state judgements in the domestic courts of the
Member States.
Serious problems apparently emerged with the 1980 Convention with regard to the interpretation
of defenses to return. The most common defense, under article 13, is that a return may be refused if there
is a “ grave risk” to the child of potential physical or psychological harm or an intolerable situation.
Instead of construing the provision narrowly, as intended, courts in return proceedings imposed their own
view of the “ best interest of the child” ( a principle where the court ruling on custody, not return, should
apply). 4
In addition to the problem of courts’ interpretation of defenses provided for the return of children,
the ambiguity of certain 1980 Convention terms like custody rights may result in different interpretations
and prevent uniformity. 5 “ Rights of custody” are defined for the purposes of the 1980 Convention as
“ rights relating to the care of the person of the child and, in particular, the right to determine the child’s
place of residence” ( article 5( a)).
A third area in which domestic courts may impose subjective interpretations is the issue of
children’s rights and human rights. Some states’ courts have reportedly interpreted a child’s right to be
heard ( under article 12 of the UN Convention on the Rights of the Child) as grounds for turning Hague
hearings into domestic ones, thereby undermining the legitimacy of the 1980 Convention’s procedures. 6
B. Problems Related to Non- Compliance
Problems of non- compliance by some Member States, such as attempts to condition the return of
children; the lack of adequate procedures to enforce access and visitation rights; and in particular the
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7 DeHart, supra note 4; and for a detailed look at problems with compliance as of March 2001, see Peter Nygh, Review of the Hague
Convention on the Civil Aspects of Child Abduction– the March 2001 Meeting of the Special Commission [ of the HCIPL], a paper presented at
the 25th Anniversary Conference, Justice, Courts & Community, July 26- 29, 2001, Sydney, Australia, available at
http:// ww. familycourt. gov. au/ papers/ html/ nygh. html. Mr. Nygh was a Member of the Australian Delegation to the Fourth Review Special
Commission.
8 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction ( Apr. 2001), at
http:// travel. state. gov/ 2001_ Hague_ Compliance_ Report. html. Many of the countries are also cited as being problematic in the Senate
Concurrent Resolution 98– Urging Compliance with the Hague Convention on the Civil Aspects of International Child Abduction ( Senate- Mar.
23, 2000), available at http:// thomas/ cgi- bin/ query/ z? c106: S. CON. RES. 98:.
9 See for example Hickman’s Resource Center, Overview: German History of child Abduction & Boycott of Access, at
http:// www. michael- hickman. org/ eng/ german_ history/ german_ history_ caboa. html; CRC Watchdog, Quality Human Rights Violations Made
in Germany: Innerstate & International Events - 2001, at http:// www. crc- watchdog. org/ content/ germany/ events_ 01. html; William McGurn,
Sweden Fights To Protect Child Abductors: Amanda Won’t Be Home for Christmas, OPINION JOURNAL ( WSJ), Dec. 23, 2002, at
http:// www. freerepublic. com/ focus/ news/ 811221/ posts.
10 Silberman, supra note 5.
11 See for example House of Commons Hansard Debates for 3 May 2001 ( pt 35), under “ Child Abduction” and “ Sir John Stanley
( Tonbridge and Malling), United Kingdom Parliament site, at http:// www. parliament. t he - s ta ti oner y-office.
co. uk/ pa/ cm200001/ cmhansard/ vo010503/ debtext/ 10503- 35. htm.
12 See Guide to Good Practice, at http:// www. hcch. net/ e/ conventions/ guide28e. html and Background Document, at
http:/ ftp. hcch. net/ doc/ prevmeas_ backe. doc.
13 See Judicial Seminar on the International Protection of Children, De Ruwenberg, Oct. 20- 23, 2001, available at
http:// www. hcch. net/ e/ conventions/ seminar. html.
continued resistance to return children at all, based on routine invocation of article 13 ( the “ grave risk”
defense) among others; have inhibited the intended operation of the 1980 Convention. 7
In the 2001 DOS report to the U. S. Congress on compliance with the 1980 Convention, Austria,
Honduras, Mauritius, and Panama were cited as “ noncompliant countries;” Mexico as a country that is
“ not fully compliant;” and Germany and Sweden, among others, as “ countries of concern.” 8 Although
some steps have apparently been taken by Germany ( see below) and Sweden to remedy the situation,
instances of non- compliance and intransigence apparently continue to be reported. 9
C. Proposed Remedies
It has been suggested that increased specialization of judges to handle only Hague cases and
targeted judicial training programs might help limit interpretation problems, as well as decrease delays
in the judicial process. Reform of national laws might also expedite the process. Means of strengthening
the 1980 Convention’s abduction procedures might include giving state officials the authority to locate and
return children and better enforcing return orders in general. 10 To combat the wide variation in practice
of the 1980 Convention’s operation and overcome weaknesses of the 1980 Convention, agreement on a
Good Practice Guide developed by the Permanent Bureau of the HCPIL has been welcomed. 11 The
Permanent Bureau also determined that it would establish a Consultative Group of experts to advise on
preventive measures against abductions. 12
In addition, judicial conferences on international child protection have been facilitated by the
Permanent Bureau, to allow judges and experts from Member States to discuss problem areas and make
recommendations for improvements. Several such seminars have been held between Germany and the
United States; for example, one was held at Germany’s initiative in 2001.13
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14 U. S. DOS Bureau of Consular Affairs, “ Open Abduction Cases by Country,” available at
http:// travel. state. gov/ 2003_ June_ Hague_ Attach. html.
15 Caroline Gosselain, Child Abduction and Transfrontier Access: Bilateral Conventions and Islamic States– A Research Paper, p. 9,
prepared for the Permanent Bureau as Preliminary Document No. 7 of August 2002 for the Attention of the Special Commission of
September/ October 2002, available at http:// www. hcch. net/ e/ conventions/ report28e. html, under the heading “ 2002.”
16 Id. at 8- 9. See also U. S. DOS Bureau of Consular Affairs website, at http:// travel. state. gov/ islamic_ family_ law. html. For
overviews of the Islamic family law systems of several individual countries, see for example ANNE- MARIE HUTCHINSON and HENRY SETRIGHT,
INTERNATIONAL CHILD ABDUCTION ( Bristol, England, Family Law, 1998).
17 Pamela Constable, Women in Iraq Decry Decision To Curb Rights– Council Backs Islamic Law on Families, THE WASHINGTON POST,
Jan. 16, 2004, at http:// www. washingtonpost. com. The decree is described as “ brief and vague” and apparently makes no specific reference
to family law issues or to branches of Islamic law ( such as the strict sharia legal doctrine) that would replace the Civil Code. This ambiguity,
according to lawyers and other experts in Iraqi women’s groups, is of particular concern, however, because different Islamic sects in Iraq
apparently advocate different policies for the legal and marital rights of women. Id.
II. Non- Member States: Issues and Problems
Various reasons have been adduced in cases where a given jurisdiction has not become a
contracting state. At present many African countries may be either too embroiled in civil unrest or too
impoverished to focus on issues like parental child abduction; if anything, the concern is fighting abuses
of children’s rights, such as their being kidnaped to be soldiers. There also may not be much pressure
on African countries to join because of the relative lack of international child abduction cases involving
them. For example, the largest number of open abduction cases the United States has with an African
nation is reportedly seventeen with Nigeria. 14
In regard to countries of Islamic tradition, acceding to the 1980 Convention is apparently
problematic because of their different concept of family law. Such countries tend to give privilege to
nationality or religion, either in accordance with specific provisions of their Civil Codes or in accordance
with existing case law. 15 Although under international law “ the interests of the child” generally guide
parenting arrangements following marital disputes, Western legal systems characteristically provide for
an equal sharing of parental responsibility and the concept of joint custody, whereas under Islamic law
parental responsibilities are distributed in a non- equal and complementary manner. Custody is attributed
to the mother, depending on the sex of the child and different interpretations of Koranic law; parental
authority, insofar as guardianship is involved, is attributed to the father. Moreover, according to Islamic
law, Islamic personal status is given priority if conflicts of nationality arise in a mixed marriage with a
non- Islamic spouse. 16 Islamic law and its relation to secular law may also vary from country to country
and within a single country. For example, multiethnic Iraq has many different religious schools but also
a Civil Code, developed under secular governments since 1959, that has relatively modern legal
protections for a Muslim country and that prohibits male favoritism in child custody disputes. Iraqi
professional women have voiced concern, however, that a Governing Council decision approved on
December 29, 2003, ordering that family laws be “ canceled” and issues be placed instead under the
jurisdiction of Islamic law, may jeopardize such protections, even if at present there is no threat of its
becoming law. 17
It may be noted that Islamic law may also be applied in Western state parties to the 1980
Convention and enforced in Western courts. This complicating factor creates a burden on those courts
LAW LIBRARY OF CONGRESS – 5
18 Germany is a case in point. See Mathias Rohe, Islamic Law in German Courts, available at
http:// www. comune. pisa. it/ casadonna/ htm/ hawwa/ rohe. pdf.
1 9 Jun Yokoyama, General Survey of Private Law Issues in Asia 5 ( c. 2003), at
http:// www. soc. nii. ac. jp/ jsil/ Panel% 20E1% 20Yokoyama% 20paper. pdf.
20 Doug Struck and Psychic Sakamaki, Divorced From Their Children in Japan, Foreign Fathers Have Few Custody Options,
WASHINGTON POST Foreign Service, 2003, included in Dads Divorce Magazine- Essays, available at
http:// www. dadsdivorce. com/ mag/ essay. php/ 0717Japan. html; Children’s Rights Council Japan, Children’s Rights Issues in Japan,
http:// www. crcjapan. com/ en/ issues. html, as last modified Jan. 1, 2004.
21 See Parliament of Australia, Senate, Helping Australians Abroad: A Review of the Australian Government’s Consular Services, Ch.
2: International Consular Arrangements, under 2.8, at http:// www. aph. gov. au/ Senate/ committee/ fadt_ ctte/ consular/ report/ c02. htm. No date
given; from the context it seems to be a 1997 document. Section 2.8 states that the Australian Government had “ been encouraging regional
countries and major migrant source countries to accede to the Convention.”
22 Nygh, supra note 7.
23 These are mentioned in Gosselain, supra note 15.
to preserve the state’s public order, constitutional rights, and the legal standard of human rights while
respecting the needs in special cases of persons who maintain a foreign nationality. 18
For other states, the multiple legal systems of religious minorities makes adherence to the 1980
Convention problematic, because no single uniform family law is applicable. Insofar as possible, states
like India, Indonesia, Malaysia, the Philippines, and Singapore leave domestic law issues to each minority
judicial system to handle. In Malaysia, moreover, legislative competence in Islamic law is attributed to
each state rather than to the Federation. 19 In general among Asian countries, private international law
rules are not uniform, even if individual countries are homogeneous societies with a homogeneous legal
system.
Some countries, like Indonesia and Japan, simply have not seen any benefit in joining the 1980
Convention, because removal of children from their territory is not currently a problem. It has been
pointed out that for Japan, “ politically, there is no strong incentive” to ratify the 1980 Convention,
because it would have to return abducted children to foreign spouses. At present, Japan does not enforce
child custody orders from foreign countries, nor is parental kidnapping deemed a crime there. As for
future prospects for Japanese membership in the 1980 Convention, a Foreign Affairs Ministry spokesman
commented that Japan has been studying the 1980 Convention since its ratification and therefore has not
yet ratified it. 20
Other countries, like Papua New Guinea and the Philippines, have indicated in the past that they
were considering membership, but they have not taken any steps to actualize it. 21 Still others, for example
the People’s Republic of China, have sent observers to a Special Session of the 1980 Convention and
reportedly indicated an intent to become a Party, but have not yet done so. 22
III. Related Major International and Regional Child Abduction Agreements
There are several other major international and regional agreements having to do with international
parental child abduction in addition to the 1980 Convention. On October 19, 1996, the HCPIL opened
for signature the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and
Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children ( Hague
No. 34) ( hereinafter the 1996 Convention). It entered into force on January 1, 2002.23
LAW LIBRARY OF CONGRESS – 6
24 19 I. L. M. 273 ( 1980).
25Available in English translation on the OAS website, at http:// www. oas. org/ juridico/ english/ treaties/ b- 53. htm.
26 See Council Regulation ( EC) 2201/ 2003, Concerning Jurisdiction and the Recognition and Enforcement of Judgments in
Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation ( EC) No 1347/ 2000. 2003 OJ [ Official Journal of the
European Communities] ( L338/ 1) ( Dec. 23, 2003). The Regulation is discussed in detail in the Law Library of Congress report on the European
Union, infra.
27 G. A. res. 44/ 25, annex, 44 U. N. GAOR supp. ( No. 49) at 167, U. N. Doc. A/ 44/ 49 ( 1989), entered into force Sept. 2, 1990. The
text is available on the Office of the High Commissioner for Human Rights of the U. N. website, along with the status of ratifications and States’
reservations, at http:// www. unhcr. ch/ html/ menu3/ b/ k2crc. htm.
28 See How Many Countries Have Ratified the Convention? at http:// www. unicef. org/ crc/ faq. htm.
29 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/ LEG/ 24.9/ 49 ( 1990), available at http:// www. africa-union.
org/ home/ Welcome. htm ( click “ Official Documents” then “ Treaties, Conventions, & Protocols”). The Charter entered into force on Nov.
29, 1999. Some 46 of 53 African Union Member States have signed and/ or ratified the Charter.
30 See News and Events for 2003, entry date 01/ 04/ 2003, at http:// www. hcch. net/ e/ events/ events. html.
Regional agreements include the Council of Europe’s European Convention on Recognition and
Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children of
May 20, 1980 ( also known as the Luxembourg Convention) 24 and the Inter- American Convention on
International Return of Children ( Montevideo Convention) that was opened for signature on July 15, 1989,
by the Organization of American States. 25 Also noteworthy is a new Regulation of the European Union,
adopted in November 2003, whose aim is to curb the number of child abduction cases among EU Member
States. Directly applicable in March 2005, the Regulation establishes which court will have jurisdiction
over such cases, provides for automatic recognition and enforcement of access rights among all Member
States, and recognizes the right of the child to enjoy contact with both parents. 26
There are also more general conventions on the protection of children. The United Nations set
down basic principles for the legal protection of children worldwide in the United Nations Convention on
the Rights of the Child of November 20, 1989.27 As of November 2003, 192 countries had become state
Parties to this Convention – more than any other human rights treaty in history. 28 The Vienna Convention
on Consular Relations of April 24, 1963, like the U. N. Convention, serves as a basis for cooperative
bilateral agreements concerning child custody ( see also below). The African Union does not have a
convention on international parental child abduction, but there is the African Charter on the Rights and
Welfare of the Child, which was adopted by the Organization of African Unity on July 11, 1990. The
Charter has provisions on the best interests of the child, the enjoyment of parental care, and the prevention
of parental abduction, among others. 29
Thus, even if a state is not a Member of the 1980 Convention, it may cooperate with other states
by means of other international instruments in the handling of parental abduction and child custody cases.
IV. Bridging the Gap Between Member and Non- Member States
One means of circumventing the differences in approach to custody issues between Western and
Islamic legal traditions may be the 1996 Hague Convention. The HCPIL describes it as, providing “ a
remarkable opportunity” for building bridges between legal systems with diverse cultural or religious
backgrounds, and notes that Morocco, which has an Islamic legal system, was one of the first states to
ratify it. 30 The 1996 Convention is seen as reducing some of the flaws in the 1980 Convention noted
LAW LIBRARY OF CONGRESS – 7
31 DeHart, supra note 4.
32 Gosselain, supra note 15, at 11- 22.
33 Frequently Asked Questions ( regarding international parental child abduction), available at http:// travel. state. gov/ ci_ faq. html.
34 See United Kingdom- Pakistan Judicial Conference on Child and Family Law, London, England, Jan. 15- 17, 2003, at
http:// www. hcch. net/ e/ conventions/ seminar. html.
above by providing for new jurisdictional rules, specifications on choice of law, and a strong enforcement
regime. In so doing, it makes the non- return of the child a final resort. 31
Another possible means of resolving international custody and access conflicts is through the use
of bilateral instruments. These may take various forms, e. g., bilateral conventions on administrative and
judicial cooperation ( including those inspired by multilateral conventions like the 1980 Convention and
Luxembourg Convention, limited cooperation agreements, and specific bilateral agreements), consular
cooperation agreements, and administrative agreement protocols. France, for example, has forged
agreements of these types with Algeria, Egypt, Lebanon, Morocco, and Tunisia. The Franco- Moroccan
and Franco- Tunisian conventions have been described as appearing to be the nearest syntheses of the
Hague and Luxembourg Conventions. While including “ classical provisions” found in multilateral
Convention- inspired bilateral instruments, a 1988 Franco- Algerian Convention also innovates by
prescribing that the rights of custody and the rights of access across international borders must be linked.
Australia, Belgium, and Canada have also concluded bilateral agreements with Islamic countries. 32 The
U. S. DOS has indicated, however, that the U. S. Government prefers to enter into multilateral treaties in
matters of private international law, because they provide most of the mutual benefits to be expected from
a bilateral treaty ( while also facilitating the development of a unified legal regime among the states parties)
and do not entail the “ long, uncertain, and resource intensive process” that is required for Senate consent
to bilateral treaties. 33
Judicial conference may also be a means of resolving problems related to child abduction cases
between states party to and not party to the 1980 Convention. As a result of a January 2003 United
Kingdom- Pakistan judicial conference on child and family law, for example, the two sides reached a
consensus on principles to be followed in handling such cases involving their respective citizens. 34
Prepared by Dr. Wendy Zeldin
Senior Legal Research Analyst
January 2004
LAW LIBRARY OF CONGRESS – 8
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1 Many civil law countries require that in order for a foreign judgment to be enforced domestically, an exequatur must be issued. An
exequatur proceeding is a requested court order declaring that a foreign judgment is enforceable. See Dahls’ Law Dictionary, at 185.
2 See COM( 2002) 222 final.
3 OJ L338/ 1 ( 12/ 23/ 2003).
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LAW LIBRARY OF CONGRESS
IMPLICATIONS OF EUROPEAN UNION REGULATION
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
In the European Union ( E. U.), a community composed of multicultural and multiethnic societies,
where citizens move freely across borders, the abduction of children is a growing problem. Frequently,
abductions occur among E. U. citizens, residents of a particular Member State, who decide either to
wrongfully remove or illegally retain a child in the territory of another E. U. Member State. The Members
that have witnessed an increased number of abduction cases are France, Germany, and the United
Kingdom, while others, such as Greece and Portugal have dealt with fewer cases. Since all the Members
are contracting parties to the 1980 Hague Convention on the Civil Aspects on International Child
Abduction, E. U. citizens whose custody rights have been violated have extensively utilized the procedures
established by this Convention.
However, as of March 1, 2005, any abduction cases involving E. U. Members will also be
governed by a new Regulation adopted on November 27, 2003. Several of its key provisions on
jurisdiction and returning children will take precedence over the equivalent provisions of the Hague
Convention. The latter will continue to govern issues not dealt by the Regulation, as well as abduction
cases involving E. U. Members and third countries that are also parties to the Convention.
One of the Regulation’s objectives is to eventually eliminate the abduction of children in the
Community through the abolition of exequatur, 1 so that decisions on access rights and the return of the
child in one Member State will be automatically recognized and enforced in another Member State.
Another important step is the recognition and enforcement of the right of a child to retain contact
with both parents. The European Commission anticipates that application of this Regulation by the
Member States may have “ a deterrent effect” on future abduction cases. 2
I. Council Regulation ( EC) No 2201/ 2003
A. Legal Basis
The Council Regulation ( EC) No 2201/ 2003 bears the title: Concerning Jurisdiction and the
Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental
Responsibility, repealing Regulation ( EC) No 1347/ 2000.3 Its legal basis is provided by articles 61( c) and
67( 1). The first authorizes the Council to adopt measures in the area of judicial cooperation in civil
matters, and the latter allows the Members States to share the right of initiative to introduce a new piece
of legislation with the Commission for a limited period. The Regulation was based on a proposal from
LAW LIBRARY OF CONGRESS – 10
4 By virtue of Decision No 2001/ 470/ EC.
5 The Regulation enters into force on Aug. 1, 2004.
the Commission and on an initiative presented by France in 2000, regarding mutual enforcement of
judgments on rights of access to children.
B. Scope
The scope of this Regulation is not limited to issues related to child abduction. In general, it
intends to solve conflicting issues related to jurisdiction, recognition, and enforcement of judgments in
family relations and questions of parental responsibility. Recognition and enforcement of judgments in
family matters is an important aspect in the Union’s effort to create a common judicial area in civil
matters, based on trust and confidence in the judicial systems of its Members.
Protection of children and according respect to their basic rights are reflected in a number of
provisions. Certain principles which are common to the legal systems and traditions of the Members, such
as equality of all children before the law irrespective of marriage of parents and the best interest of the
child, are recognized in the Preamble of the Regulation. Mention is also made to article 24 of the Charter
of Fundamental Freedoms Protection, proclaimed in Nice in 2000, which recognizes three basic rights that
are relevant and essential in abduction cases: children’s voices and opinions must be heard on issues that
are of concern to them; the child’s best interest must be taken into consideration; and a child has the right
to maintain a personal relationship and contact with both parents on a regular basis.
C. Definitions
Several of the terms and concepts used in the Regulation were modeled after the Hague
Convention. Thus, “ wrongful removal or retention” of a child occurs when:
• the removal or retention violates the rights of custody acquired by judgment or by
operation of law or by an agreement of the Member State where the child had its
habitual residence immediately prior to being removed or retained;
• the custody rights were actually exercised, either jointly or alone, at the time of
removal or retention.
The term of “ rights of custody” is defined as including the rights and duties relating to the care
of a child and especially the right to determine the residence of the child. “ Rights of access” include the
right to take a child to a place other than his habitual residence for a limited period.
II. Critical Issues in Abduction Cases
A. Central Authority
The Members are required to designate one or more Central Authorities to ensure the smooth and
effective application of the Regulation. These authorities may communicate through the European Judicial
Network established in 2001.4 The Members must also forward the names, addresses, and means of
communication for the Central Authorities, and the languages accepted for the communications, to the
Commission within a 3- month period after this Regulation enters into force. 5
LAW LIBRARY OF CONGRESS – 11
6 See art. 55 of the Regulation.
7 See art. 11 of the Regulation.
A parent whose custody rights have been violated may proceed either through the Central
Authority of his residence or directly approach the central authority of the Member State where the child
has been taken. The Central Authority is empowered to perform the following tasks: 6
• collect and exchange information on the status of the child and on decision related to
the child
• provide information and assistance to those who have custody rights
• facilitate communication between courts, especially in case a court has decided not to
return a child under article 13 of the Hague Convention ( In this case, a copy of the
court’s order on non- return and other documents must be transferred to the court in the
Member State where the child has its habitual residence immediately prior to being
wrongfully removed or retained.)
• facilitate communication between the court which has jurisdiction with another court,
if the original court decides to transfer the case to a court in another Member State on
the grounds that the child in question has a particular connection to the other State and
the second court is better suited to hear the case.
III. Return of the Child7
Recital 17 of the Preamble clarifies that in case of wrongful removal or retention of a child, the
provisions of the Hague Convention will continue to apply, as complemented by article 11 of the
Regulation. A parent whose custody rights have been violated has the right to file an application to
request the return of the child based on the Hague Convention. In this case, the Regulation imposes a
number of procedural safeguards, which must be followed by the courts of the Member States. These
require that:
• the child be given a chance to be heard during the proceedings, depending on his age
and maturity;
• the court must act expeditiously in such proceedings based on national law provisions;
• the court should render its decision within 6 weeks after the application is filed before
the court, unless it is impossible to do so;
• the court cannot refuse to return a child based on article 13b of the Hague Convention
if it has been established that security measures have been taken to protect the child
after his return;
• the court cannot refuse to return the child unless it has heard the person who requested
the return of the child.
LAW LIBRARY OF CONGRESS – 12
8 See art. 10 of the Regulation.
9 See art. 40 of the Regulation.
10 The form of the certificate is appended to the Regulation.
IV. Jurisdiction8
The Regulation establishes that the court of the Member State where the child had its habitual
residence immediately prior to being illegally removed or retained, retains its jurisdiction, until the child
acquires a habitual residence in another Member State and:
• the person with custody rights has acquiesced to the child’s removal or retention; or
• the child has resided in that other Member State for a period of at least 1 year, after
the person with custody rights has had or should have had the knowledge of the
whereabouts of the child, and the child has settled in his new environment. In this
case, a number of additional conditions must exist, including the requirement that no
request to return the child has been filed within a year from the person with custody
rights discovering the child’s whereabouts; a request to return the child has been
withdrawn, and others.
V. Enforceability of Judgments concerning Rights of Access and Judgments Requiring the
Return of the Child9
An important innovation introduced by this Regulation is the abolition of exequatur, or the filing
of a request in a domestic court to declare a foreign judgment enforceable. As a result, the rights of
access granted in a judgment are recognized and enforceable automatically in another Member State,
provided that the judge who decided on question of visitation rights has issued a certificate. 10
The same applies to judicial orders for the return of the child; there is no requirement for a
declaration of enforceability to be issued by a domestic court. The judge, who ordered the return of the
child will issue a certificate of enforceability, provided that the following criteria are met:
• the child was given an opportunity to be heard, unless it was not appropriate due to the
child’s age;
• the parties involved had an opportunity to be head; and
• the court that issued the order had taken into consideration the provisions of article 13
of the Hague Convention.
VI. Conclusion
As the EU moves into gradually establishing a common judicial area in civil matters, and as
abduction of children becomes a more common phenomenon, especially in interstate marriages, the need
to establish concise rules to resolve conflicts of jurisdiction at the EU level in cases of parental abduction
and child retention has become apparent. Adoption of Regulation ( EC) No 2201/ 2003 by the EU
accomplishes three basic objectives: resolves a thorny conflict of jurisdiction matter, by determining that
the court of the Member State where the child was habitually resident prior to being illegally removed or
LAW LIBRARY OF CONGRESS – 13
retained, retains its jurisdiction until the child acquires a habitual residence in another Member State;
recognizes the child’s right to enjoy contact with both parents; and abolishes exequatur procedure through
the automatic recognition and enforceability of access rights by all Members. However, whether or not
the applicability of this Regulation, as of 2005, by EU Members will discourage future child abduction
cases across the Community, as the Commission anticipates, remains to be seen.
Prepared by Theresa Papademetriou
Senior Legal Specialist
March 2004
LAW LIBRARY OF CONGRESS – 14
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1 Law 23857 of Oct. 19, 1990 in BOLETIN OFICIAL [ B. O.] Oct. 31, 1990.
2 Countries where the Agreement is effective with the Argentine Republic: Australia, Austria, Bahamas, Belarus, Belgium, Belize,
Bosnia and Herzegovina, Brazil, Burkina Faso, Canada, Colombia, Costa Rica, Croatia, Chile, China, Hong Kong Region, China- Macau,
Cyprus, Denmark, Ecuador, Slovakia, Slovenia, Spain, United States of America, Former Republic of Yugoslavia, Fiji, Finland, France,
Georgia, Germany, Greece, Honduras, Hungry, Ireland, Iceland, Israel, Italy, Luxembourg, Malta, Mauricio, Mexico, Moldova, Monaco,
Norway, Netherlands, New Zealand, Panama, Paraguay, Poland, Portugal, UK ( Isle of Man, Cayman Islands, Falkland Islands, Montserrat,
Bermuda), Check Republic, Romania, Saint Kitts and Nevis, South Africa, Sweden, Switzerland, Turkmenistan, Turkey, Uruguay, Uzbekistan,
Venezuela, Yugoslavia, and Zimbabwe.
3 Law 24190 Ley de Ministerios, art. 17 inc. 11 and Decree 488/ 92 and Ministerial Resolution 203/ 94. Ministry of Foreign Affairs,
International Trade and Worship, General Department for Legal Matters, Division for International Legal Assistance, address: Esmeralda 1212 -
4th floor ( 1007) - Federal Capital - Argentine Republic, Telephone: ( 54) 11 4 819- 7000 extensions: 7629/ 7187, Fax: ( 54) 11 4 819- 7170/ 7121
email: menores@ mrecic. gov. ar .
2004- 92
LAW LIBRARY OF CONGRESS
ARGENTINA
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
The Hague Convention on the Civil Aspects of International Child Abduction adopted on October
25, 1980, during the 14th Session of the Hague Conference on Private International Law, was ratified by
Argentina1 effective June 1, 1991. On May 31, 1998, pursuant to article 45 of the Convention, the
Argentinean government transmitted a declaration rejecting the extension of the Convention to the
Falkland Islands by the United Kingdom of Great Britain and Northern Ireland. Argentina also reaffirmed
its sovereign rights over the Malvinas ( Falkland Islands), South Georgia, and South Sandwich Islands.
It applies to all countries Argentina recognizes as parties thereto. 2
I. Domestic Laws and Regulations Implementing the Hague Convention
The Central Authority for the Convention in Argentina is the Dirección General de Asuntos
Jurídicos- Dirección de Asistencia Judicial Internacional of the Ministry of Foreign Affairs, International
Commerce and Worship. 3
A. Return Requested from Abroad
The Central Authority addresses only the administrative and informational functions, because the
judiciary always decides on the return of a child or the visitation schedule. Once an application for return
has been received, the Central Authority will verify that the petition complies with all the requirements
provided for under the Convention. Before seeking a child' s return or voluntary visitation from the parent
in whose residence the child is located, the Central Authority must obtain the prior approval of the
requesting parent. If the child’s return or voluntary visitation schedule does not take place at this first
stage, the petition will have to be submitted by a private attorney to the competent court. The Central
Authority will provide the appropriate court with a general background of the Convention and will also
offer its assistance to the court during the proceedings.
The Central Authority' s role is administrative and informative, whereas the judiciary decides on
the feasibility of the application for return or access rights.
LAW LIBRARY OF CONGRESS – 16
4 Jose Carlos Arcagni, La Convención de la Haya sobre los Aspectos Civiles de la Sustracción Internacional de Menores y el Derecho
Internacional Privado Tuitivo, 1995- D REVISTA JURÍDICA ARGENTINA LA LEY, Sec. Doctrina, 1032 ( Buenos Aires, 1995).
5 Law 26358 of November 1st, 2000 in Boletin Oficial ( B. O.) Dec. 12, 2000.
6 Member countries are: Argentina, Belize, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Haiti, Mexico, Paraguay,
Peru, Uruguay and Venezuela, see http:// www. oas. org/ juridico/ spanish/ firmas/ b- 53. html.
7 Supra note 5, art. 1.
However, the Central Authority does not provide legal assistance to private individuals during the
proceedings before Argentine courts. A private lawyer will have to be hired to carry out the judicial
aspect of the request. Those who cannot afford a private lawyer, and who qualify, may obtain the
assistance of a public funded attorney.
Similarly, once the judicial stage has been instituted, the Central Authority will be at the Court
and the parties' disposal to provide any information necessary for the implementation or application of the
Convention with regard for the best interest of the child.
When the minor' s domicile has not been located, the Argentine Central Authority will inform
Interpol, the agency which will be in charge of locating the minor in question.
B. Return Requested from Argentina
The petitioner must fill out a standard set of forms from the Central Authority and return them
to the Central Authority in triplicate. This form requests all the information necessary to locate the child,
including identity information concerning the child and the person who has taken the child; the child' s date
of birth; the reasons for claiming the return; and information on the presumptive domicile of the child.
A copy of the judicial decision or agreement on the custody of the child may also be attached. 4 Seeking
legal counsel is recommended in order to complete the form, although this is not required. In case the
petition is addressed to a non- Spanish speaking country, the forms will have to be submitted both in
English and Spanish.
Once all documents have been submitted, the Central Authority will evaluate whether the case
meets all the requirements of the Convention. If the case is admitted, the Central Authority will send the
return and visitation petition to the Central Authority of the requested country. The proceedings abroad,
of course, will depend on the internal regulations of the respective Central Authority together with the
procedural norms applied by the competent courts. In many cases the petitioner will have to hire a private
attorney in the requested country. If the petitioner cannot afford to hire a private attorney, he may
investigate whether he qualifies under Argentine law to receive free legal advice and become eligible for
such assistance abroad.
The petitioner will be kept informed by the Argentine Central Authority about the status of his
case since both Central Authorities will be in constant contact about the case.
Argentina has also become a member to the Inter- American Convention on International Return
of Minors ( IACIRM) adopted in Montevideo, Uruguay, on July 15, 1989, and ratified by Argentina on
November 1, 2000.5 This Convention applies to any return case involving a minor whose permanent
residence is in any of the member countries6 and has been illegally or wrongfully taken abroad. The
Convention also applies to the enforcement of visitation and custody rights. 7 The IACIRM also provides
LAW LIBRARY OF CONGRESS – 17
8 Id. art. 34.
9 O. y Florit, Código Penal de la República Argentina, Editorial Universidad, Buenos Aires, 1997.
10 Id. art. 146.
11 Id. at 347.
12 Cámara Nacional Criminal y Correccional, Sala II, December 3, 1987, in Boletín de Jurisprudencia Cámara Nacional Criminal
y Correccional, 1987, No. 4 at 1680; Sala III, May 27, 1992 in Boletín de Jurisprudencia Cámara Nacional Criminal y Correccional, 1992,
No. 2, at 141; Sala I, June 28, 1994, in Boletín de Jurisprudencia Cámara Nacional Criminal y Correccional, 1994, No. 2, at 77.
13 Law 24270 of Nov. 3, 1993, amending the Criminal Code published in B. O., Nov. 25, 1993.
14 Id. art. 1.
15 Id. art. 2.
16 Id. art. 3.1.
17 Id. art. 3.2.
that for members of the Organization of American States that are party to this Convention and also party
to the Hague Convention on Civil Aspects of International Child Abduction, the IACIRM will apply,
unless stated otherwise between the parties through bilateral agreements. 8
II. Domestic Laws Regarding Child Abduction and Parental Visitation
Under the Criminal Code, 9 the punishment for anyone who takes and hides a minor 10 years of
age or younger from the control of his parents, guardian, or person in charge of him is 0imprisonment
from 5 to 15 years. 10 Scholarly opinion is not clear on whether a parent who takes a child from the other
parent is guilty of this crime. 11 However, a number of court decisions12 have suggested that any parent
who takes and keeps a child out of the control of the parent who has been judicially assigned the custody
of the child is guilty of this crime.
Law 2427013 created the crime of Impedimento de Contacto de Hijos Menores con sus Padres no
Convivientes ( preventing minors from having contact with the non- custodial parent). Therefore, the parent
or a third person who illegally prevents or obstructs contact between a minor and his non- custodial parent
will be punished with imprisonment from 1 month to 1 year. If the child is younger than 10 years of age
or handicapped, the punishment is imprisonment from 6 months to 3 years. 14
The same sanctions would apply to the parent or third person who, in order to prevent the parent
not living with the child from contacting him, takes the child to another domicile without judicial
authorization. If, with the same purpose, such a person takes the child out of the country, the punishment
would increase up to double the minimum and half of the maximum. 15
In such cases, the court must take all necessary measures to restore the parent' s contact with the
child within 10 days. 16 The court must also establish a provisional visitation schedule to be applied for
not more than 3 months, or if there is already a visitation schedule, the court must enforce it. 17
Although articles 5 and 21 of the Convention guarantee some type of visitation schedule during
the return proceeding, the courts have interpreted these provisions narrowly considering that the
LAW LIBRARY OF CONGRESS – 18
18 Id. at 1034- 1035.
19 Id. at 1035.
20 Id.
21 Id.
22 Código Civil, Zavalia, Buenos Aires, 1999, art. 264 quarter.
Convention does not expressly require member countries to establish or enforce a visitation schedule
during the conventional procedure. 18 There are some scholarly opinions to the contrary; some authors19
have interpreted the Convention as very clear in requiring Central Authorities to file petitions for
visitation, as well as return purposes. According to J. C. Arcagni, the Convention does not require the
precondition of enforcing parental visitation rights to the issue of abduction itself. According to this
author, the narrow interpretation that the courts have adopted may be due to the fear that visitation rights
that may require taking the child out of his habitual residence or domicile may create the risk of
abduction. 20 Thus, in order to avoid such risks and conflicts, the Central Authorities will have to play a
very important role to secure the conditions and timing of the visits through permanent and effective
supervision over the minors. 21
According to sources from the Argentine Central Authority, Dr. Ignacio Goicoechea, to date, all
Argentine courts have waited for the court deciding on the issue of the custody of the child to establish
the visitation schedule provided for under Article 21 of the Convention. However, in many cases a
voluntary agreement between the parties was reached during the return proceedings.
The Argentine Civil Code22 establishes that in some cases, express consent of both parents will
be required in order for the minor to carry out certain actions.
This provision refers to parents legally married and living together with the child, as well as
parents that are separated or divorced, especially when one of the parents has physical custody of the
minor, and the other has only visitation rights.
Authorization to leave the country is included among the actions for which express consent is
required by both parents. This means that either the father or the mother may grant or deny this
authorization, or grant it for a limited period of time, and therefore express his agreement or disagreement
regarding a possible change of residence of the minor.
When a parent wishes to relocate with the child in a foreign country, he will need to acquire the
court ' s authorization when a legal custody arrangement has been settled. This is also the case when a
parent has only physical custody of the minor, since according to article 264 of the Argentine Civil Code,
consent of both parents is required in order to leave the country. Of course, the problem arises when a
parent is denied the relocation by the courts, and he decides to abduct the child.
III. Court System and Structure – Courts Handling the Hague Convention
When Argentina is the requested country and there is no voluntary return of the child, the
competent court for return proceedings under the Convention will be either the civil ordinary courts in the
Federal Capital and national territories or the provincial courts, which may be family courts in those
provinces that have such, or the civil courts. The case may be appealed to the respective Court of Appeals
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23 Wilmer, E. M. c/ Oswald, M. G., LA LEY, 1996- A, 260, Supreme Court, June 14- 1995.
24 C1 CC San Isidro, Sala 1, Aug. 31, 2000, M., V. c/ G. B., M. s/ Restitución de menor y tenencia y régimen de visitas in Revista
El Derecho, Jurisprudencia General, Vol. 191, Buenos Aires 2001.
25 I. M. Weinberg de Roca, LA APLICACIÓN DE LA CONVENCIÓN DE LA HAYA SOBRE RESTITUCIÓN DE MENORES SIN INTERVENCIÓN
DE AUTORIDAD EXTRANJERA REQUIRENTE, in Id. at 115- 116.
26 Id. at 121.
27 Soraya Nadia Hidalgo, Restitución Internacional de Menores en la República Argentina, 1996- C REVISTA JURÍDICA ARGENTINA
LA LEY 1393 ( Buenos Aires, 1996).
and, if admissible, to the Supreme Court. So far, there has been only one case that has reached the
Supreme Court. 23 In this case, the Supreme Court finally ordered the return of the child who was illegally
taken from Canada to Argentina by her mother. The child went back to Canada after an extremely
protracted process ( over a year), compared to the Convention’s standard ( not more than 6 weeks).
In 2000, the Argentine courts decided a very interesting case, 24 applying the Convention, without
the intervention of the foreign Central Authority. The case involves a German man who married an
Argentine woman in Denmark. They had a daughter who was born in Argentina. When the girl turned
4 months old, the family moved to live in Germany. After 2 years, the couple separated and the mother
was granted the child’s full custody by a German lower court. Later, the mother and child traveled to
Argentina, and from there, the mother notified to the German court she and her daughter were going to
establish their permanent residence in Argentina. The German Court of Appeals revoked the lower court
decision granting the child’s custody to the mother, but at the same time did not grant it to the father. The
German Court of Appeals maintained that it lacked international jurisdiction on this child’s custody issue,
because her permanent residence was in Argentina. This occurred, because of the legitimate right of the
mother, who had exclusive custody of the child, and therefore, had the right to determine the permanent
residence of the child. 25
In view of the German court’s decision, the father requested the return of his daughter to Germany
before the lower courts in Argentina, who granted the petition under the provisions of the Hague
Convention. The mother appealed the decision, and the Argentine Court of Appeals reversed the lower
court decision, on the basis that the Hague Convention was not applicable in the case, because the child
in question was not illegally or wrongfully moved from Germany. The mother had the exclusive custody
of the child, which included the right to establish their permanent residence. The final decision on the
case, rejecting the return of the child to Germany, was consistent with the aim of the Hague Convention,
which is mainly to prevent that, through illegal means, the child is taken away from the competent courts
to decide the custody of the child. However, in this case, it was the same German court that decided its
lack of jurisdiction, pointing out that the case should be decided by Argentine courts. 26
IV. Law Enforcement System
Both the Central Authority and the courts have requested assistance from the police and Interpol
to locate children and secure the enforcement of authorities’ orders. 27 In Argentina children are sought
by Interpol, not only in the cases derived from International Conventions, but also in those originated in
countries where no conventions exist.
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28 Law 25746 of July 1, 2003 in B. O. July 2, 2003 regulated by Decree 1005/ 2003 of Oct. 30, 2003 in B. O. Oct. 31, 2003.
29 Id. arts. 1 and 2.
According to the Argentine Central Authority, since January 2000 to the present, the request
statistics are as follows:
Return requests ( outgoing) Return requests ( incoming)
Pending: 78 Pending: 19
Closed: 92 Closed: 32
TOTAL: 170 TOTAL: 51
Visitation requests ( outgoing) Visitation requests ( incoming)
Pending: 13 Pending: 3
Closed: 16 Closed: 7
TOTAL: 29 TOTAL: 10
On June 11, 2003,28 the National Registry of Information about Missing Minors was created under
the National Program for the Prevention of the Abduction and Trafficking of Minors and Crimes Against
their Identity, created by Resolution 284/ 02, within the Ministry of Justice, Security, and Human Rights.
The Registry will establish a database that will collect all information related to cases of children that have
been abducted or missing. The database will be available on Internet and will include all information
needed to locate them and also to check on the status of the search. 29
Both parents are required under the law to authorize, not only the minor’s travel abroad, but also
the issuance of a passport to a minor. The withdrawal of such a passport, as well as the denial or
restrictions on the issuance of visas, may only be ordered by a court. Therefore, in order for a minor,
who is not traveling with both parents, to leave the country, he will have to present his valid passport, as
well as the absent parent’s authorization to travel, before the border authorities. Administrative measures
and court orders may become ineffective if border controls in the country are not duly carried out. This
is the case for dry/ land boundaries due to the length of the Argentine borders. However, border controls
are highly effective with regard to air carriers and ferries.
When a court orders a prohibition to leave the country, such an order is given to border
authorities, including Federal Police, Immigration, Interpol- Argentina, and Aeronautic Police.
V. Legal Assistance Programs
Legal Assistance Programs are not available. A private attorney must be hired if a voluntary
return fails, and judicial proceedings need to be started. However, a public defender may be available
if the claimant can prove that he cannot afford a private attorney.
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30 http:// www. menores. gov. ar.
31 http:// ar. missingkids. com.
32 Id.
33 http:// www. pibe. org. ar. See also, Fundación Niños Unidos para el Mundo, http:// www. foundchild. org. ar.
VI. Conclusion
The Ministry of Foreign Affairs has a website30 to provide information on those conventions
referred to child protection from different viewpoints or scopes. It is addressed to those who, on account
of their duties, must enforce some of those mentioned international conventions. It is also addressed to
those who are included in some of the situations covered by the conventions and need to know whom to
address the application in order to prevent unnecessary delays. The website intends to disseminate the
rights derived from the Convention on the Rights of the Child and point out some helpful hints for their
protection.
However, due to the lack of human and financial resources, the government has not been able to
provide more comprehensive information to prevent abductions. The role of non- governmental
organizations ( NGOs) has been very important in this regard, because they fill a gap that cannot be filled
by governments.
NGOs, such as the Argentine chapter of Missing Children, 31 have webpages on the Internet to
provide assistance to parents whose children are missing. The webpage provides a comprehensive
multilingual database which includes pictures of the missing children, as well as a progressive age picture,
showing how a child could have aged through the years, based on the latest available picture. It also
provides their identification and physical description. 32 There are other local NGOs, such as Fundacion
PIBE, based in the Province of Tucuman, which also provides information and support to parents of
missing children through their webpage. 33
The application of the Convention in Argentina appears to be successful, particularly in expediting
the return of minors. The Convention is an example of the humanization of private international law, with
its most important goal being the well- being of the child. Of all the cases to which the Convention was
applied, the one reaching the Supreme Court in 1995 has had extensive media coverage. This promotion
of the Convention raised public awareness, and Argentineans became more conscious about the serious
issues involved in international parental child abduction.
Prepared by Graciela I. Rodriguez- Ferrand
Senior Legal Specialist
November 2003
LAW LIBRARY OF CONGRESS – 22
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1 Australian Treaty Series 1987, No. 2.
2 Jennifer Degeling and Nan Levett, INTERNATIONAL CHILD ABDUCTION: A GUIDE FOR PARENTS AND PRACTITIONERS, Commonwealth
of Australia, Attorney- General’s Department ( November 2001) at 16, available at http:// www. law. gov. au/ childabduction/.
3 Krista M. Bowie, INTERNATIONAL APPLICATION AND INTERPRETATION OF THE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL
CHILD ABDUCTION ( March 2001), available at http:// www. familycourt. gov. au/ papers/ html/ bowie. html.
2004- 92
THE LAW LIBRARY OF CONGRESS
AUSTRALIA
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
The Commonwealth of Australia is a federation of the six states of New South Wales, Queensland,
Victoria, South Australia, Tasmania and Western Australia, and the Australian Capital Territory and
Northern Territory. It has a common law based system of law. The Constitution of Australia adopts the
enumerated powers doctrine, under which the federal Parliament may make laws “ for the peace, order,
and good government of the Commonwealth,” while the undefined residue of powers is left to the states.
Commonwealth laws are guaranteed to prevail over inconsistent state laws, but there is nothing to stop
a state from legislating on the subject of a power granted to the Commonwealth. In section 51( xxi) and
( xxii) of the Constitution, the federal Parliament is granted legislative power over marriage, divorce,
parental rights, and the custody and guardianship of infants.
The exercise of the federal power over family matters is represented by the enactment of a
Commonwealth statute, the Family Law Act 1975 ( FLA), as amended. The FLA set up a federal Family
Court, a superior court of record with jurisdiction in family laws, including issues relating to children.
Many constitutional challenges were mounted against the FLA, most of which have now been resolved,
but the State of Western Australia continues to apply its own laws.
It is in pursuance of the powers contained in the FLA that Australia ratified the 1980 Hague
Convention on the Civil Aspects of International Child Abduction, and it came into force in 1987.1 A
November 2001 Commonwealth Attorney- General’s Department Guide for Parents and Practitioners on
International Child Abduction gave a total of 173 applications under the Convention for orders for return
or access, reflecting 76 abductions to Australia and 97 from Australia. 2 The number in relation to
countries not covered by the Convention may be much higher. The number of abductions was believed
to be increasing. A 2001 paper explained the increase as a consequence of the growing number of bi-national
or multi- cultural marriages. The offspring of such marriages often have dual nationality and can
easily enter the country of the abducting parent. 3
I. Domestic Laws and Regulations Implementing the Hague Convention
The Family Law ( Child Abduction Convention) Regulations ( Child Abduction Regulations) issued
pursuant to the powers contained in the FLA 1975, section 111B give effect to the Convention. The
LAW LIBRARY OF CONGRESS – 24
4 McCall and McCall; State Central Authority ( Applicant); Attorney- General ( Commonwealth) ( Intervener), ( 1995) FLC ¶ 92- 551 at
pp. 81,507, 81,509, and 81,517. The Family Law ( Child Abduction Convention) Regulations 1998 are available on the Commonwealth
Attorney- General’s Department online database SCALEPLUS, at http:// scaleplus. law. gov. au/. They were most recently amended on June 5,
2002.
5 Anthony Dicky, CHILD ABDUCTION IN FAMILY LAW ( CCH, 1999).
6 17 Laws of Australia, FAMILY LAW, ¶ 17.8[ 23]-[ 25].
7 Anne- Marie Hutchinson, Rachel Roberts and Henry Speight, INTERNATIONAL PARENTAL CHILD ABDUCTION 67 ( 1998).
8 Family Law and Legal Assistance Division, at http:// law. gov. au/ www/ familylawHome. nsf/.
9 For fuller details of the information to be included in the affidavits in support of the application, see the United States Department
of State, at http:// travel. state. gov/ abduction_ australia. html.
Convention by itself is not part of Australian law, and only the Child Abduction Regulations are so
accorded. 4 Accordingly, the provisions of the Convention cannot override the terms of the Regulations. 5
The Hague Convention applies to any child under the age of 16 years who was habitually resident
in a contracting state immediately prior to the removal or retention. The term “ habitually resident” is not
defined in the Convention, but under Australian case law it is to be understood according to the ordinary
and natural meaning of the two words; its determination is a question of fact and is often based on the
conduct of the parties. 6 The Australian Family Court is stated to favor a slightly wider interpretation of
the Convention than courts in England, and changing a child’s residence requires proof that both parents
had a shared intention to remain in a new country. 7
Under the Child Abduction Regulations, when a child has been removed from a Convention
country to Australia, or retained in Australia, an application must be sent to the Commonwealth Central
Authority which must be satisfied that it is in accordance with the Convention ( Regulation 12). The
Commonwealth Attorney- General’s Department is the Australian Central Authority. Issues involving the
Hague Convention are dealt with by that Department’s International Civil Procedures Unit, a part of the
Family Law Branch. 8 The Commonwealth Central Authority may seek an amicable resolution of the
differences between the applicant and the person opposing the return of the child or the voluntary return
of the child. “ Removal” and “ retention” of a child are defined as being in breach of the rights of custody
of a person or institution if at the time of removal those rights were actually exercised or would have been
so exercised except for the removal ( Regulation 3).
The information required to be included in the application should be in the form of an affidavit
stating that the child was habitually resident in the requesting country at the time of the wrongful removal
or retention. The affidavit should include information on the child’s place of residence, the person with
whom the child lived, any period spent outside the country, the name of the school and the time spent
there, the child’s grade, etc. The right of custody over the child should also be described based on the law
of the state or country of habitual residence. The affidavit must also explain the incidents and
circumstances surrounding the removal of the child in order to provide a proper understanding of the
situation. A copy of any court order granted prior to the removal must be included, and a copy of the
applicable statute on custody must also be supplied. Evidence that the applicant was actually exercising
the right of custody over the child should be provided in the form of an affidavit from the applicant’s
lawyer stating how those rights were being exercised. 9
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10 Hutchinson, supra note 7, at 66.
11 Id. at 67.
12 Family Law Act 1975, § 68L.
13 Supra note 6, ¶ 17.8[ 29].
Once accepted by the Commonwealth Central Authority, the application will be forwarded to the
relevant Central Authority in the country where the child is located. If a child’s exact location is not
known, a warrant may be issued by a court for the possession of the child. The Central Authority will
also assess whether it is appropriate to negotiate a voluntary return and may make initial contact with the
abducting party. 10 If the negotiations fail or negotiations are considered inappropriate, the case will be
forwarded to the Crown Solicitor ( state attorney) who will file an application with the Family Court.
Direct contact between the applicant and the Crown Solicitor is discouraged, and communications are
normally handled by the Central Authority. The application must be listed for a preliminary hearing
before the Family Court within 7 days, at which time a date will be set for the defending party to file a
response and for a full hearing. The hearing is before a single family specialist judge, and the judgment
is usually formulated on the basis of the documentary evidence, together with any affidavits deemed
necessary. The court may require a family and child counselor or welfare officer to report on such
matters that are relevant to the proceedings, and the reports may include any other matters that relate to
the welfare of the child ( Regulation 26). Oral evidence may be called in cases in which there is a wide
discrepancy in the evidence. The Court will take into account the wishes of a child who has sufficient
maturity to understand the proceedings. 11 A child of an appropriate age and degree of maturity should
be separately represented, and the court should make an order for the presence of such a representative. 12
The Court, if satisfied that it is desirable to do so, may make an order for the return of the child
to the country in which he habitually resided immediately before the removal or retention, or make any
other order it considers to be appropriate to give effect to the Convention ( Regulation 15). It must make
an order for the return of the child if the application was filed less than one year after the day on which
the child was removed to, or first retained in, Australia ( Regulation 16( 1)). The Court may refuse the
return of the child if the person opposing the return establishes that the following prescribed exceptions
to the return apply:
( a) the applicant was not actually exercising rights of custody when the child was first removed
to, or retained in, Australia and those rights would not have been exercised if the child had not
been so removed or retained; or
( b) return would expose the child to physical or psychological harm or otherwise place the child
in an intolerable situation; or
( c) the child objects to being returned and has attained an age and degree of maturity at which it
is appropriate to take his views into account; or
( d) return would not be permitted by the fundamental principles of Australia relating to the
protection of human rights and fundamental freedoms ( Regulation 16).
If a period in excess of 1 year has elapsed prior to an application being made for the return of a
child, the Court is required ( subject to the above prescribed exceptions) to make an order for the return
of the child immediately, unless it can be proved that the child is now settled in his new environment
( Regulation 16( 2)). 13
LAW LIBRARY OF CONGRESS – 26
14 Hutchinson, supra note 7, at 67.
15 For citations to Australian case law on this and the following points of interpretation of the Convention, see supra note 6, ¶ 17.8[ 14].
16 Hague Conference on Private International Law, CONVENTION AND RECOMMENDATIONS ADOPTED BY THE 14TH SESSION AND
EXPLANATORY REPORT BY ELISA PEREZ- VERA ( The Hague, 1982).
17 Migration Amendment Regulations 2000 ( no. 2) 2000 No. 62, amending the Migration Regulations 1994 ¶ 4015- 4018,
http:// scaleplus. law. gov. au/ html/ Commonwealth of Australia, Attorney- General’s Department, AUSTRALIA’S COMBINED SECOND AND THIRD
REPORTS UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD, Part V, Section H “ Illicit Transfer and Non- return ( art. 11),” available at
http:// www. law. gov. au/.
The Court must refuse to make an order to return the child if it is satisfied that:
a) the removal or retention of the child was not within the meaning of the Child Abduction
Regulations; or
( b) the child was not a habitual resident of a Convention country immediately before removal or
retention; or
( c) the child had reached the age of 16; or
( d) the child was removed to, or retained in, Australia from a country which at that time was not
a Convention country; or
( e) the child is not in Australia.
The burden for “ substantiating settlement lies with the defending parent who must demonstrate
that the child is both physically established in a new location and is emotionally settled and secure.” 14 The
rationale of the Hague Convention is considered as being clear in that the object is the expeditious return
of the child, and therefore the function of the Court should not be hampered by interpretations which
interfere with the administration of the Convention. 15 Similarly, terms in the Convention should be given
their literal meaning, and its expressions should be understood according to their ordinary and natural
meaning and should not be treated as terms of art with special meaning. The Family Court of Australia
has had recourse to the explanatory report of the drafters and negotiators of the Hague Convention. 16
On an order of return being made by the court, the responsible Central Authority must make the
necessary arrangements for the return of the child to the country of habitual residence. Unless the court
order is stayed within 7 days of its making, the child must be returned to the country of habitual
residence.
The Child Abduction Regulations also make provisions granting rights of access to a child in
Australia ( Regulation 24). The Hague Convention, article 21, calls on Central Authorities to promote the
peaceful enjoyment of access rights, and the Child Abduction Regulations require the Commonwealth
Central Authority to take such steps as are necessary for the purpose of enabling the performance of the
obligations under the Article.
On July 1, 2000 the Migration Regulations were amended to ensure that a visa for migration to
Australia would not be granted to a child without the permission of everyone with a right to decide where
the child can live. If there is a dispute between parents over the removal of a child to Australia, the
migrating parent is required to demonstrate their legal right to decide where the child may live. 17
LAW LIBRARY OF CONGRESS – 27
18 Supra note 12, § 65Y( 1) & 65Z( 1).
19 Id. § 67Q.
20 In Western Australia unmarried mothers alone continue to exercise parental responsibility and residence rights over the child.
21 Family Law Reform Act 1995, § 111B( 4).
II. Domestic Laws Regarding Child Abduction and Parental Visitation
A. Child Abduction
The FLA, section 65Y, makes provisions against the removal of a child who was the subject of
a custody order from the person who had care and control of the child. The penalty for the offense is
imprisonment for up to 3 years. In 1983, amendments were enacted creating a further offense to remove
a child from Australia during pending proceedings or in contravention of a court order. 18 For children
abducted from overseas into Australia, the FLA provides authority for the issuance by a court of a
“ location order” and a “ recovery order.” A location order calls for any person to obtain and provide
to the Registrar of the court information on where a child is to be found. Once located, a recovery order
authorizes the return of the child to the person seeking his recovery without exposing the abductor to any
violence. The Act grants various enforcement powers to search premises, places, vehicles, aircraft and
to arrest, remove, or take possession of the child. 19
According to the Family Law Council, the provisions of the Family Law Act have not proven
effective in preventing children from being unlawfully removed from or retained outside Australia. First,
the offense is limited to cases in which court orders are in force or proceedings are pending. Secondly,
the provision has no application to the common situation in which a parent takes a child abroad with the
consent of the other parent and then retains the child. In a majority of cases of domestic abductions, the
parent from whom the child is taken has no court order, and the abducting parent has not committed a
criminal offense.
Under state laws, criminal provisions exist, including child stealing and abducting a child under
the age of 16 years. These provisions were not specifically designed to cover parental child abduction,
although there are some provisions which may be applicable in cases of such abductions.
The ( Commonwealth) Criminal Code Act 1995, Division 27, section 27.2, contains provisions
relating to kidnapping, child abduction, and unlawful detention. Under it kidnapping is extended to cover
the situation in which a person takes or detains another person without consent with the intention of taking
the person out of the jurisdiction. A person who takes or detains a child is deemed to be acting without
the child’s consent. If the person removing the child is that child’s lawful custodian or acts with the
consent of the custodian, it is a defense.
A note is made of the change in terminology in Australia regarding custody and access. In 1996,
these were replaced by a system of shared parenting based on parental responsibility. The joint
responsibility is applicable whether or not the parents are married. 20 Reference is now made to a child’s
“ residence,” that is, with whom the child lives, and the “ contact” that the child has with certain persons.
The change, however, does not affect the use of the terms “ custody” and “ access” in the Hague
Convention, as the statute specifically provides that the terminology of the Convention continues to apply
to Australian parents. 21
LAW LIBRARY OF CONGRESS – 28
22 Family Law Act 1995, § 61B.
23 Id. § 61C( 2).
24 Id. § 63B.
25 Supra note 6, ¶ 17.8[ 44].
With regard to the effect of the change of terminology on abductions when both parents are
responsible for the child, the removal of a child by one parent prevents the other parent from exercising
his responsibilities. This amounts to a parental abduction arising from the taking over of all
responsibilities for a child’s care without regard for the other parent who shares those responsibilities.
B. Parental Visitation
The concept of parental responsibility introduced by the 1995 Act is defined to include “ all the
duties, powers, responsibilities, and authority which, by law, parents have in relation to children.” 22 Each
of the parents of a child who is not 18 has parental responsibility for the child, and any change in the
nature of the relationship of the parents does not result in a change in the responsibility. “ It is not affected,
for example, by the parents becoming separated or by either of them marrying or re- marrying. ” 23 Thus,
the parents generally retain the same responsibilities they exercised over the children before the breakup
of their marriage. This is the situation irrespective of whether the child resides with one parent and the
other has contact with the child.
The 1995 Act encourages the parents of a child to agree about matters concerning the child, giving
the best interests of the child paramount consideration, rather than seeking an order from a court. A
“ parenting plan” may be drawn up dealing with various matters, including the person with whom the child
is to live; contact between the child and another person; maintenance of the child; and any other aspect
of parenting responsibility. The plan may be registered in a court, and if so done, the court may vary the
child welfare provisions in the best interests of the child. 24
The Hague Convention also requires that rights of access granted in the laws of members states
be respected. The Child Abduction Regulations ( Regulation 24) vest upon the Central Authority the duty
to promote the enjoyment of those rights, a duty which is administrative and non- mandatory in nature.
The Central Authority may thus initiate or instruct legal representatives to seek an access order.
Moreover, while the Convention does not place an absolute obligation on the Court, it may consider the
best interests of the child in determining whether an access order should be made. If a foreign access
order is in existence, it is given the “ greatest weight” and would be overridden only by the paramount
consideration of the welfare of the child. 25
III. Court System and Structure – Courts Handling the Hague Convention
The federal Family Court deals with all legal matters which follow from family breakups and
divorce, the custody and welfare of children, access arrangements and property disputes. In Western
Australia, a separate Family Court of Western Australia exists to exercise federal and non- federal
jurisdiction in family law and adoption matters. Under a system of cross- vesting of jurisdiction between
federal, state and territory courts, the Family Court of Australia is vested with the full jurisdiction of the
LAW LIBRARY OF CONGRESS – 29
26 Jurisdiction of Courts ( Cross- Vesting) Act 1987. In 1999, the Australian High Court invalidated parts of the cross- vesting
arrangements in Re. Wakim, [ 1999] HCA 27 ( 17 June 1999). The Jurisdiction of Courts Legislation Amendment Act 2000, No. 57, and the
Jurisdiction of Courts ( Miscellaneous Amendments) Act 2000, No. 161 were passed to address some of the objections of the Court.
27 Family Court of Australia, at http:// www. familycourt. gov. au/ missing/ html/ abduction. html.
28 ( 1997) FLC, ¶ 92- 733, at pp. 83,883- 83,884.
29 ( 1997) FLC, ¶ 92- 746 at pp. 84,072, and 84,074.
30 As stated by the Family Court in England in Re. F [ 1995] 2 Fam LR 31, 41.
31 Dickey, supra note 5, ¶ 211.
32 Re S ( A Minor), [ 1993] Fam 242, 250.
state and territory Supreme Courts. 26 Cross- vesting reduces uncertainties as to the jurisdictional limit of
the courts and ensures that proceedings which ought to be tried together are tried in one court. The
website of the Family Court of Australia contains a section on child abduction, with links to papers and
reports, as well as judgments by the Family Court and the High Court. 27
An appeal may be brought as a matter of right to the Appeals division of the Family Court of
Australia sitting with three judges, and a further appeal may be made to the High Court of Australia, if
the Appeals division or the High Court certifies that a question of law has arisen.
The nature of the litigation arising in administering the Hague Convention is considered to be in
a class by itself and is described as being neither adversarial nor inquisitorial. As in other family matters,
applications under the Convention are processed expeditiously. Hearings are held in open court, but the
names of the persons involved in the proceedings must not be disclosed by the media, the sanction against
which is a criminal penalty.
The Child Abduction Regulations ( Regulation 2( 1)) confer jurisdiction of child abduction cases
on any court which exercises jurisdiction under the Family Law Act. This includes a court of summary
proceedings.
In the majority of cases, the Central Authority makes an application for an order for the return
of a child, as the Regulations grant them primary responsibility for instituting proceedings. However, the
Full Court of the Family Court expressed the view in Panayotides v Panayotides28 that such proceedings
can be properly brought by any person, institution, or other parties whose rights of custody have been
breached by the removal or retention.
In State Central Authority v. Ayob, 29 the Court ruled against a literal interpretation of the Child
Abduction Regulations because of the clear import of provisions in the Convention. It is accepted in
Australia that the Convention is to be interpreted broadly, without attributing to it any specialist meaning
which it may have acquired under domestic law. 30 Thus, important expressions in the Convention on
“ rights of custody” and “ habitually resident” have been interpreted more broadly than under Australian
domestic law. 31
The reason for the prompt return of the child is to ensure that the courts in the home country
determine who should have parental responsibility, and as such, where the child should live. 32 It is
LAW LIBRARY OF CONGRESS – 30
33 Dickey, supra note 5, ¶ 202.
assumed that the issues are best determined by the courts of the country in which the child has the most
obvious and substantial connection. 33
IV. Law Enforcement System
The procedure of the Hague Convention is designed to enable a court or administrative authority
to immediately return the child to its country of habitual residence.
In granting an order for the return of a child, a court may grant to the Commonwealth or State
Central Authorities:
• a warrant for the apprehension or detention of the child, including the right to stop and
search a vehicle, vessel, or aircraft, or to enter and search such premises;
• an order that the child not be removed from a specified place;
• an order that the child be placed with an appropriate person or institution pending the
determination of the application for return.
The procedure is designed to enable the authorities to return the child to the person seeking the
child’s recovery without exposing the abductor to possible violence.
However, it is acknowledged that as parental abduction remains solely a civil matter, it does not
obtain a priority of police resources, nor are detection procedures, such as telephone interception and the
use of listening devices, made available.
V. Legal Assistance Programs
Applications made in Australia under the Hague Convention are automatically funded by the
Government and no means test is applicable. The Hague Convention, article 26, paragraph 3, allows a
contracting state to make a reservation that it will not be bound to meet certain costs of recovery of a
child. Australia has not made such a reservation, while a significant number of countries have done so.
The Australian Central Authority does require foreign applicants to deposit sufficient funds with
their legal representatives to cover the costs of the air fares, prior to processing an application through the
courts. There is an Overseas Custody ( Child Removal) Scheme to compensate Australian applicants who
do not have the financial means for air travel.
Under the Child Abduction Regulations ( Regulation 30), the Court can order the abducting parent
to pay the expenses of the applicant, including necessary traveling expenses, costs incurred in locating the
child, legal representation costs, and other costs incurred for the return of the child. However, in family
matters each party bears its own expenses and order for the payment of costs are rarely made.
The parties to a Hague Convention application may engage legal representatives at their own
expense and apply for legal aid ( assistance). Legal aid is available in all of Australia, subject to means
and merits tests. Each state and territory adopts its own eligibility criteria.
LAW LIBRARY OF CONGRESS – 31
34 Supra note 6, § 17. 8 [ 14].
35 Supra note 2, at 15.
36 Hague Conference on Private International Law, Convention No. 34, at http:// www. hcch. net/ e/ conventions/ menu34e. html.
37 Commonwealth Numbered Acts 1973 and database, at http:// scaleplus. law. gov. au/.
VI. Conclusion
Given the objective of the Hague Convention to expeditiously return children taken from one
country to another, the Family Court of Australia has interpreted the Convention in a manner which
accords with its spirit. As required under the Vienna Convention on the Law of Treaties, the Court has
followed the primary rule of interpreting the Hague Convention in good faith in accordance with the
ordinary meaning to be given to its words. It has also made use of the Explanatory Report to the
Convention to confirm the meaning arrived at or to remove an ambiguity or overcome a manifestly absurd
or unreasonable result. 34
The number of cases of parental abduction has increased since the Hague Convention came into
force in Australia in 1988. One explanation for the increase may be the significant increase in the number
of countries that have ratified the Convention and the resulting greater awareness of the problem. The
Attorney- General’s Department, however, notes that the increase has mainly been in relation to the United
Kingdom, the United States and New Zealand. 35
The statutory Family Law Council after investigating several issues relating to child abductions
referred to it by the Attorney- General, has made several recommendations, including that:
• steps be undertaken to improve the data collected on child abductions
• parental child abduction, whether internally or from other countries, should not be
criminalized and alternative means should be adopted for improving the recovery rate of
abducted children
• the courts be given broad discretionary powers to recover the costs associated with the
recovery of children abducted from abroad from the person responsible for the abduction.
To improve the operation of the Hague Convention, Australia has signed the additional Hague
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co- operation in respect of
Parental Responsibility and Measures for the Protection of Children 1996.36 This Convention is intended
to eliminate competition or dissonance between the authorities of different states with regard to orders for
the protection of children. It requires that contracting states accept limitations on the jurisdiction of their
authorities in order to avoid conflicts in matters of jurisdiction and applicable law. To implement the
Convention, Australia’s Commonwealth Parliament passed the Family Law Amendment ( Child Protection
Convention) Act 2002, which received royal assent on September 3, 2002.37 Full implementation of the
Act required amendments to state and territory legislation, and it did not go into force until August 1,
2003. Apart from conflicts of jurisdiction, the Act also guarantees the mutual recognition and
enforcement of parental responsibility orders by Convention countries. A benefit for Australia is the 1996
Convention’s use of the term “ parental responsibility.” Australian parents had sometimes been
LAW LIBRARY OF CONGRESS – 32
38 International Child Abduction News, Nos. 24 and 25 ( June- Sep. 2002), at http:// www. law. gov. au/ childabduction/.
3 9 Australian Embassy - Beirut, AUSTRALIA AND LEBANON: 2002 - THE YEAR IN REVIEW,
http:// www. lebanon. embassy. gov. au/ bilateral/ 2002. html.
40 AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE ARAB REPUBLIC OF EGYPT REGARDING
COOPERATION ON PROTECTING THE WELFARE OF CHILDREN ( Cairo, Oct. 22, 2000) Australian Treaty Series [ 2002] ATS 3, at
http:// www. austlii. edu. au/.
disadvantaged when other Convention countries refused to recognize that parental responsibility gave
Australian parents the essential “ right of custody” under the 1980 Convention. 38
In countries that are not signatories to the Convention, Australian Embassies endeavor to provide
what assistance they can to Australians whose children have been taken to those countries. In some
countries, such as Lebanon, which have contributed many immigrants to Australia, the Australian
Embassy has tried to develop ties with the local courts, in order to facilitate cooperation in child custody
matters. The Embassy in Beirut reported that in October 2002, a large delegation of Lebanese lawyers
attended a conference in Sydney and were able to meet Australian judges and gain insight into the
operation of the Family Court of Australia. 39
In October 2000, Australia and Egypt signed an Agreement on cooperation in protecting the
welfare of children. This entered into force on February 1, 2002. The Agreement, intended to establish
formal procedures to assist Australians whose children have been abducted to Egypt, establishes a Joint
Consultative Commission which will assist in encouraging dialogue between parents and facilitate the
return of children. 40
Prepared by Kersi B. Shroff
Chief, Western Law Division
With the assistance of Dr. Donald R. DeGlopper
Senior Legal Research Analyst
March 2004
1 The Hague, Oct. 25, 1980 T. I. A. S. 11670.
2 Promulgated Sept. 14, 1988, BUNDESGESETZBLATT [ BGBl, official law gazette for Austria] no. 1988/ 512.
3 BUNDESGESETZBLATT [ official law gazette of Germany] 1991 II at 336.
4 A German newspaper article suggested that Austria was almost as reluctant as Germany to return abducted children [ C. Brinke, Im
Zweifel für den Kidnapper, SÜDDEUTSCHE ZEITUNG 12 ( Oct. 21, 1999)].
5 The U. S. Department of State’s assessment of non- compliance [ U. S. Department of State, Report on Compliance with the Hague
Convention on the Civil Aspects of International Child Abduction ( Jun. 2003) http:// travel. state. gov/ 2003haguereport. html ( last accessed Jan.
3, 2004)] was based on one case in which the Austrian Courts refused to return a child after ordering its return on the grounds that
circumstances had changed between the decision and its enforcement [ Oberster Gerichtshof ( OGH) decision, Oct. 15, 1996, docket no. 4 Ob
2288/ 96 s., 38 ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG, INTERNATIONALS PRIVATRECHT UND EUROPARECHT ( ZfRV) 33 ( 1997)].
Various diplomatic and administrative attempts were made yet these did not resolve this impasse The Austrian Ministry of Justice
tried to get the parties to agree to more generous visitation rights, yet these efforts failed. The Austrian press expressed surprise at the intensity
of U. S. diplomatic and administrative efforts which was viewed as an attempt to influence the Austrian courts [ Kindesentführung: US- Tadel an
Österreich, Die Presse ( Jul. 11, 2000) http:// www. diepresse. at ( last accessed Jan. 3, 2004)]. The position of the United States was vindicated
by the judgment of the European Court for Human Rights [ infra note 6]. Various aspects of the case are discussed throughout this report.
6 European Court of Human Rights, Apr. 24, 2003, Sylvester v. Austria, 2003 Eur. Ct. H. R. 36812/ 97 .
7 Bundesgesetz zur Durchführung des Übereinkommens vom 25. Oktober 1980 über die zivilrechtlichen Aspekte internationaler
Kindesentführung HKÜG] , June 9, 1988, BGBl. no. 1988/ 513.
8 Requests are to be directed to the Federal Minister at the following address:
Der Bundesminister für Justiz
A 1070 Wien
Museumstrasse 7
AUSTRIA
2004- 92
LAW LIBRARY OF CONGRESS
AUSTRIA
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
Austria ratified the Hague Convention on the Civil Aspects of International Child Abduction1
[ hereinafter the Hague Convention] in September 1988,2 and it became effective for Austria on October
1, 1988.3 Austria made no reservations to the Convention and the implementing legislation provides
effective and generous mechanisms for processing Hague Convention requests. Nevertheless, it has been
alleged that refusals to return children to foreign countries frequently occur in Austria, 4 and in 2001, 2002,
and 2003, the U. S. Department of State listed Austria as a non- complying country5 on the basis of one
case that in 2003, caused the European Human Rights Court to issue a judgment against Austria. 6
I. Domestic Laws and Regulations Implementing the Hague Convention
A. Statutory Law – Implementation in General
The Austrian Implementing Act for the Hague Convention [ hereinafter the Implementing Act] 7
became effective on October 1, 1988, together with the Convention. The Implementing Act designates
the Austrian Federal Ministry of Justice [ hereinafter the Ministry] as the Central Authority8 within the
LAW LIBRARY OF CONGRESS – 34
9 Ausserstreit- Begleitsgesetz [ Companion Act to the Non- Contentious Proceedings Act]. Dec. 31, 2003, BGBl I no. 2003/ 112, art.
24, amending [ HKÜG § 5, effective date Jan 5, 2005.
10 The reported cases involve claiming parents from other European countries, and from Canada and New Zealand. The only reported
case involving an abduction from the United States appears to be the Sylvester case, supra notes 5 and 6.
11 OGH decision, Oct. 25, 2002, 44 ZfRV 98 ( 2002)
12 OGH decision, Oct. 30, 2003, docket no. 80b121/ 03g; OGH decision, Apr. 15, 1998, docket no. 7 Ob 72/ 98h, ÖSTERREICHISCHE
JURISTEN- ZEITUNG 667 ( 1998).
13 OGH decision, Feb. 12, 1997, docket no. 35/ 97s, 70 ENTSCHEIDUNGEN DES ÖSTERREICHISCHEN GERICHTSHOFES IN ZIVILSACHEN,
no. 27 ( 1998). The Court distinguished the case from its 1992 decision [ OGH, Feb. 5, 1992, docket number 2 Ob 596/ 91, 34 ZfRV 32 ( 1993)]
in which a similar order by English authorities was deemed to indicate joint custody.
meaning of article 6 of the Hague Convention and makes provisions for fitting Hague Convention requests
into the Austrian administration of justice. In December 2003, the Implementing Act was amended by
centralizing venue for Hague Convention proceedings in a smaller number of Districts Courts, so as to
build judicial specialization and allow the judges to decide the cases faster. 9
When a request arrives from abroad, the Ministry must first examine whether the child is located
in another country, in which case the request will be forwarded in accordance with article 9 of the
Convention. If it appears that the child is in Austria, the Ministry is called upon to have the request and
the underlying documents translated into German, if they have been provided in a foreign language. This
is done at the expense of the Austrian Federal Government. The Ministry then forwards the request to
the president of the Austrian District Court [ Bezirksgericht], which has venue over the case, who in turn
assigns the case to the appropriate judge.
Upon receipt of the case, the judge must grant legal aid, including attorney services, to the
requester, irrespective of the latter’s financial circumstances. If the parties cannot be persuaded to settle
on the return of the child, the judge must decide the case expeditiously in a non- contentious proceeding.
In the enforcement of returns or visitation privileges, the judge may involve the youth welfare agencies,
if this is deemed beneficial for the child.
The president of the District Court must keep the Ministry apprized of any steps taken in the
proceeding and written explanations must be given if the proceeding is not terminated within 6 weeks.
The Ministry may also ask the court and requester’s counsel about the status of the proceeding.
B. Implementation by the Courts
In the past 15 years, the Austrian Supreme Court, in its role as the second and final appellate
instance, has ruled on questions of law in a fair number of Hague Convention proceedings. 10 In some of
these cases the Supreme Court upheld return refusals when the abducted child did not have a habitual
abode in the country from where he was taken11 and when the claiming parent did not have custody or had
not exercised custody. 12 In one such case the Supreme Court had upheld a return refusal, because the
mother had been awarded sole custody in Canada, the habitual residence of the child, even though the
Canadian courts had ordered the mother to stay in Canada with the child. 13 These cases appear to indicate
that the Austrian courts will refuse the return of the child, unless all the requirements of the Hague
Convention are met. Moreover, the Austrian interpretation of the purposes of the Convention and of its
LAW LIBRARY OF CONGRESS – 35
14 OGH decision, Feb. 12, 1997, supra note 13.
15 OGH decision, May 29, 2000, docket no. 7 Ob 123/ 001, 42 ZfRV 30 ( 2001).
16 OGH decision, Mar. 28, 2000, 41 ZfRV 186 ( 2000).
17 OGH decision, Oct. 17, 2003, docket no. 1Ob246/ 03p.
18 OGH decision, June 19, 1997, 38[ ZfRV] 249 ( 1997).
19 Supra notes 5 and 6.
20 OGH decision, Jan. 18, 2000, 41 ZfRV 147 ( 2000).
21 M. Schwimann, 1 ABGB PRAXISKOMMENTAR 388 ( Wien, 1997); B. Verschraegen, Das Kind “ Helene,” in F. Matscher et al.,
EUROPA IM AUFBRUCH – FESTSCHRIFT FRITZ SCHWIND 227 ( Wien, 1993).
limits is similar to that of the German courts. In fact, German case law is frequently cited in the Austrian
decisions. 14
A few of the Supreme Court decisions deal with the exception of article 13, subparagraph ( b) that
justifies a refusal when the return of the child would involve the risk of grave harm. In such cases the
Supreme Court has held that one of the purposes of the Hague Convention is to protect the best interest
of the child by not returning him to a dangerous situation. 15 The evaluation of the facts in the individual
cases is left to the courts of lower instance, and their judgments prevail unless errors of law are apparent. 16
According to the Supreme Court, not every inconvenience or separation or minor difficulty, such
as language difficulties or length of separation from the habitual residence amounts to a serious danger. 17
However, the “ grave harm” exception was applicable in a case involving the claiming father’s proven
violence against the mother, as well as his unemployment and history of substance abuse. 18 The exception
was also deemed applicable in the denial of enforcement in the Sylvester case, 19 because of the criminal
prosecution of the taking mother in the state of residence, in conjunction with a custody decision over the
abducted infant that was pronounced in absentia of the taking mother.
On visitation, the Supreme Court has ruled that Austrian domestic law governs the granting of
visitation in Hague Convention requests, and that the Central Authority does not determine the extent of
visitation, but merely serves to facilitate the request of the claiming parent. 20
II. Domestic Laws Regarding Child Abduction and Parental Visitation
A. Best Interest of the Child
An explanation of Austrian domestic law on issues related to child care and custody may help to
provide understanding of the legal environment in which Hague Convention requests are adjudicated in
Austria. In particular, an understanding of the concept of the best interest of the child is essential. This
concept is of overriding importance in all domestic decisions concerning children, 21 and it is possible that
this philosophy may carry over into the adjudication of Hague Convention requests.
LAW LIBRARY OF CONGRESS – 36
22 Allgemeines Bürgerliches Gesetzbuch [ ABGB], June 1, 1811, GESETZE UND VERORDNUNGEN IM JUSTIZFACHE no. 946, as amended.
23 Currently Ausserstreitgesetz [ old AusserStrG], August 9, 1854, REICHSGESETZBLATT [ RGBl] number 1854/ 208, as amended, §
182 ( b), formerly ABGB § 178 ( b); as of January 1, 2005, Ausserstreitgesetz [ new AusserStrG], Dec. 12, 2003, BGBl I no. 111/ 2003], § 105
24 ABGB § § 145- 178 ( a).
25 Kindschaftsrechts- Änderungsgesetz 2001, BGBl I no. 2000/ 135.
26 H. Weitzenböck, Die Schwerpunkte des neuen österreichsichen Kindschaftsrechts, 54 DAS STANDESAMT 289 ( 2001).
27 ABGB, § 177.
28 ABGB, § 178.
29 ABGB, § 176.
The criteria for determining the best interest of the child are expressed in the section 178 ( a) of
the Civil Code, 22 which translates as follows:
In adjudging the welfare of the child, the personality and the needs of the child must be
taken into appropriate consideration, in particular, his or her aptitudes, abilities,
inclinations, and potential for development, as well as the lifestyle of the parents.
To determine what is in the best interest of the child, the court has to hear the child in all
proceedings that involve custody, visitation, and related issues, unless the best interest of the child allows
for no delay in the proceeding or the child is not capable of giving an intelligible response. Questioning
can be delegated to the suitable youth welfare professional under certain circumstances, such as the
questioning of a child younger than age 10.23
B. Child Abduction – Civil Provisions
Austrian civil law appears to have no provisions on domestic child abductions. It appears that if
the court is invoked about a domestic child abduction, the ensuing decision will be a custody decision that
will decide according to the governing Civil Code provisions, 24 and these emphasize the best interest of
the child.
C. Custody
In July 2001, a family law reform25 became effective that brought significant changes to Austrian
custody law. Prior to that reform, joint custody was generally not possible for divorced parents. 26 Since
the reform, joint custody remains in effect when parents get divorced or separate permanently. However,
one of the parents must be designated as the primary caretaker, with whom the child is to reside primarily.
As to all other aspects of child care, the parents may agree on a division of tasks among them, and they
may also agree that only one parent should have custody. 27 The parent who is not the primary caretaker
has extensive rights of visitation, as well as the right to be kept informed and to be consulted. 28
In determining custody, the family courts play a central role. They must review the custody
agreements of the parents and approve of them if they are in the best interest of the child. When a child
is in an unsuitable custody situation, anyone may petition the court to remedy the situation, and a number
of relatives, youth officials, as well as parents and foster parents, may petition for a change in custody. 29
LAW LIBRARY OF CONGRESS – 37
30 Strafgesetzbuch [ Criminal Code], Jan. 23, 1974, BGBl no. 1974/ 60, as amended, § 195.
31 ABGB, § § 148 and 178.
32 ABGB, § 145 ( b).
33 Weitzenböck, supra note 26 at 292.
34 Old AusserStrG, § 185c; new AusserStrG § 111.
35 Weitzenböck, supra note 33.
36 Old AusserStrG, § 19.
37 Weitzenböck, supra note 33. See also infra, note 48 and 49 and accompanying text.
38 Bundes- Verfassungsgesetz, BGBl. no. 1/ 1930, art. 87, as amended.
D. Child abduction – Criminal Provisions
The abduction of a child or a minor from the person who has custody is a criminal offense. It is
punishable with up to 3 years in prison, if the child was younger than age 14, and with up to 1 year in
prison if the minor is between the ages of 14 and 16. In either event, the offense can be prosecuted only
upon request of the person whose custody rights had been breached. 30
E. Visitation
The parent who does not have custody or is not the primary caretaker has rights of visitation, and
the extent of these rights may be determined by the court if the parents cannot agree. 31 Since the 2001
reform of family law, visitation is viewed not only as a right of the parent, but also as also as a right of
the child. The best interest of the child is to be considered in any judicial determinations, and parents
have duties of good conduct, 32 the violation of which may lead to changes in visitation rights or their entire
cancellation. 33
The court may decide that visits must be supervised by an observer, of this appears to be in the
best interest of the child, particularly if the child and the visiting parent have not seen each other for a long
time or if there are reasons to fear that the visiting parent may behave inappropriately. Observed visits
are a novelty in Austrian law, having been introduced through the 2001 Family Law Reform, 34 and
practice on how these cases are to be handled may not as yet have evolved. 35
Difficulties may also arise in the enforcement of visitation rights decisions. Whereas contempt
of court measures have been available in the currently effective version of the Non- Contentious
Proceedings Act, 36 it appears that the courts tread carefully when contemplating coercive measures in
decisions that relate to the welfare of the child. 37
III. Court System and Structure – Courts Handling the Hague Convention
Although Austria is a federated country, procedural law and the administration of justice are
centralized in the Federation. Judicial independence is guaranteed by the Constitution which also prohibits
forum shopping by requiring the courts to assign all cases to judges according to an assignment plan made
in advance. 38 The Austrian court system is very specialized, providing, in addition to the courts of
LAW LIBRARY OF CONGRESS – 38
39 F. Schwind and Fritz Zemen, Austria, in I INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW A 67 ( Tübingen, 1973).
40 HÜKG § 5.
41 OGH decision, Apr. 28, 1992, docket no. 4 Ob 1537/ 92, 34 ZfRV 32 ( 1993).
42 OGH decision, Jun. 19, 1997, 38 ZfRV 249 ( 1997).
43 Supra note 6.
44 Supra note 17.
45 Jurisdiktionsnorm [ Court Organization Act], August 1, 1895, RGBl no. 1895/ 111, as amended, § 3.
46 Currently, old AusserStrG, § 14; E. Feil, VERFAHREN AUSSER STREITSACHEN 236 ( Wien, 2000); as of Jan. 2005, new AusserStrG,
§ § 53 and 62.
47 Currently old AusserStrG , § 19; Feil, supra note 46, at 237. Verfahren ausser Streitsachen 237 ( Wien, 2000); as of Jan. 5, 2005,
new AusserStrG § 110 in conjunction with its § 79.
ordinary jurisdiction, special courts for labor disputes and administrative matters, while constitutional
issues are decided by the Constitutional Court. 39
Hague Convention requests are adjudicated by the courts of ordinary jurisdiction, in non-contentious
proceedings. 40 These family court proceedings tend to be even more inquisitorial than
Austrian proceedings in general, thus allowing the judge much latitude in organizing the proceeding, while
requiring a less formal conduct by the parties. The judge decides what use is to be made of the youth
welfare offices to provide counseling, evaluations, or other services. The judge may also call for expert
testimony by child care professionals. However, in doing so, the judge must balance the desirability of
investigations with the obligation to speed the proceeding as much as possible, as is provided in the
Convention and the Implementing Statute. In the interest of speed, it is even permissible for the Austrian
court to deny a hearing. 41
In the past, Austrian case law justified procedural delays to protect the welfare of the child. 42
Since the judgment of the European Human Rights Court in the Sylvester case, 43 the Austrian Supreme

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The Law Library of Congress
REPORT FOR CONGRESS
June 2004
Directorate of Legal Research
LL File No. 2004- 92
HAGUE CONVENTION ON
INTERNATIONAL CHILD ABDUCTION
An analysis of the applicable law and institutional framework of fifty- one jurisdictions and the
European Union.
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THE LIBRARY OF CONGRESS
WASHINGTON, D. C. 20540
LAW LIBRARY Tel.: ( 202) 707- 9148
DIRECTORATE OF LEGAL RESEARCH Fax: ( 202) 707- 1820
June 22, 2004
Honorable Richard G. Lugar, Chairman
Honorable Joseph R. Biden, Jr., Ranking Member
Senate Committee on Foreign Relations
Dirksen Senate Office Building
Washington, D. C. 20510- 6225
Dear Senator Lugar and Senator Biden:
In response to your request for the Law Library of Congress to update our previous report
of August 2000 on the Hague Convention ( No. 28, 1980) on the Civil Aspects of International
Child Abduction, it is my pleasure to transmit to you an updated and significantly expanded series
of comparative analyses that provide a detailed introduction to the Hague Convention No. 28, a
discussion of the implications of relevant European Union regulation, and fifty- one national reports
that detail the applicable law and institutional framework applicable to the Hague Convention No.
28 in those countries.
This Convention has been recognized by some as one of the most successful of the more
than forty Hague Conventions that have been coordinated and drafted by the Hague Conference on
Private International Law, an intergovernmental organization that works toward the progressive
unification of private international law. Certainly few issues are more important than ensuring that
the best interests of children are addressed when custodial relationships are complicated by
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The Law Library staff of foreign law attorneys and analysts who prepared these analyses
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are too many of them to recognize by name here, they are identified in the table of contents and at
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credit for the editing and assembly of this report are Jamie Martin, our Editor; Irene Chang, our
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Congress, we hope that this report will assist the Committee in its important work.
Respectfully submitted,
WALTER GARY SHARP, SR.
Director of Legal Research
ii
NOTE ON METHODOLOGY
The Senate Committee on Foreign Relations requested the Law Library of Congress to update
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International Child Abduction, and to add, to the extent possible, reports on all of those jurisdictions
that are recognized by the United States as parties to the Convention. Of the seventy- nine
jurisdictions ( not including the United States) that are a party to the Hague Convention No. 28 as of
May 4, 2004, the United States recognizes fifty- nine jurisdictions as a party; this series of
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a detailed introduction, a discussion of the implications of relevant European Union regulation,
analyses on two additional jurisdictions ( Belarus and Georgia) not recognized as a party by the United
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The remaining ten jurisdictions recognized by the United States as a party that are not
addressed in this report were omitted, because the Law Library did not have either the expertise on
staff or the collections available to prepare a report, or because the party has done very little or
nothing to implement the Hague Convention No. 28. Appendix A identifies those parties to the
Hague Convention No. 28 that are not covered by this report. It is also important to note that the
enclosed report on Denmark was not updated from our previous report of August 2000 because we no
longer have a Nordic law specialist on staff.
Finally, most reports contain Uniform Resource Locator ( URL) references and citations to
websites that are not part of the loc. gov domain. These URLs are provided to cite authority to the
source of information that we have relied upon to prepare the report and as a convenience for the
reader; however, some of these online references may link to subscription services not generally
available to the public or may not be maintained by the originators.
TABLE OF CONTENTS
LETTER OF TRANSMITTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
NOTE ON METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION Wendy Zeldin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
IMPLICATIONS OF EUROPEAN UNION REGULATION Theresa Papademetriou . . . . . . . . 9
COUNTRIES PARTY TO THE CONVENTION IN THIS REPORT
ARGENTINA Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
AUSTRALIA Kersi B. Shroff and Donald DeGlopper . . . . . . . . . . . . . . . . . . . . . . . 23
AUSTRIA Edith Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
BAHAMAS Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
BELARUS, REPUBLIC OF Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
BELGIUM George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
BELIZE Krishan Nehra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
BERMUDA Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
BOSNIA AND HERZEGOVINA Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
BRAZIL Fernanda C. A. Freitas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
CANADA Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
CAYMAN ISLANDS Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
CHILE Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
COLOMBIA Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
CROATIA, REPUBLIC OF Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
CYPRUS Theresa Papademetriou . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
CZECH REPUBLIC George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
DENMARK Fariborz Nozari . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
ECUADOR Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
FALKLAND ISLANDS Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
FRANCE Nicole Atwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
GEORGIA, REPUBLIC OF Peter Roudik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
GERMANY Edith Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
GREECE Theresa Papademetriou . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
HONDURAS Norma C. Gutierrez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
HONG KONG Mya Saw Shin, Tao- tai Hsia, and Constance A. Johnson . . . . . . . . . . 183
HUNGARY Kersi B. Shroff and Karla Walker . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
IRELAND, REPUBLIC OF Kersi B. Shroff and Diana Frazier Miller . . . . . . . . . . . 195
ISLE OF MAN Kersi B. Shroff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
ISRAEL Ruth Levush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
ITALY Giovanni Salvo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
LUXEMBOURG George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
MACEDONIA, REPUBLIC OF Suren Avanseyan . . . . . . . . . . . . . . . . . . . . . . . . 233
MALTA Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
MEXICO Gustavo E. Guerra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
MONACO Nicole Atwill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
MONTSERRAT Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
THE NETHERLANDS Karel Wennink . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
NEW ZEALAND Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
PANAMA Norma C. Gutierrez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
POLAND Bozena Sarnecka- Crouch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
PORTUGAL Fernanda C. A. Freitas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
SAINT KITTS AND NEVIS Stephen F. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . 297
SLOVAK REPUBLIC George Glos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
SOUTH AFRICA Belma Bayar and Ruth Levush . . . . . . . . . . . . . . . . . . . . . . . . . 305
SPAIN Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
SWEDEN Mikaela Neijd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
SWITZERLAND Edith Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
UNITED KINGDOM Clare Feikert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
VENEZUELA Graciela I. Rodriguez- Ferrand . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
ZIMBABWE Charles Mwalimu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
APPENDICES
A. CHART OF COUNTRIES PARTY TO CONVENTION . . . . . . . . . . . . . . . . . 361
B. BIBLIOGRAPHY Wendy Zeldin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
C. TEXT OF THE HAGUE CONVENTION ON CHILD ABDUCTION . . . . . . . . . 375
1 Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 1, T. I. A. S. No. 11,670, 1343 U. N. T. S. 89.
For an online text, see for example www. hcch. net or the United States Department of State ( DOS) Bureau of Consular Affairs website, at
http:// travel. state. gov/ hague_ childabduction. html. Wrongful removal is defined in art. 3 of the 1980 Convention; art. 4 deals with the children
to which it applies.
2 The website of the Permanent Bureau ( secretariat) of the Hague Conference on Private International Law maintains a list of Member
States of the 1980 Convention and has abundant related material. That list has 74 jurisdictions; it counts Hong Kong and Macao as one entry
under “ China” and does not separate out the five overseas territories/ crown dependency of the United Kingdom, hence the difference of 6 parties
compared with the Law Library count. The Permanent Bureau also has been developing the International Child Abduction Statistical Database
( INCASTAT), an electronic database containing annual statistics from many of the states parties to the 1980 Convention. For a description,
see Permanent Bureau, Information Document, Preliminary Document No. 10 of July 2002 for the Attention of the Special Commission of
September/ October 2002. In 1999, the Hague Conference established INCADAT, a database of significant decisions contributed by some of
the Member States, chiefly in the form of summaries of leading child abduction cases but many with the full text of the case attached. The
bilingual ( English and French) database is at www. incadat. com.
The U. S. DOS maintains a list of states parties with the United States and provides some individual reports on relevant laws on
children of both member and non- member countries.
3 Ernie Allen, foreword to International Forum on Parental Child Abduction: Hague Convention Action Agenda ( a report by Prof.
Nigel Lowe, Director of the Centre for International Family Law Studies, Cardiff University, Wales, United Kingdom) iii ( Apr. 1999),
www. pact- online. org/ pdf/ forum_ report. pdf. The Forum was held Sept. 15- 16, 1998. The report was apparently sponsored by the National
Center for Missing & Exploited Children ( NCMEC), a national clearing house and resource center funded under a cooperative agreement from
2004- 92
LAW LIBRARY OF CONGRESS
INTRODUCTION
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
The Hague Convention on the Civil Aspects of International Child Abduction is an
intergovernmental agreement reached at The Hague on October 25, 1980 ( Hague No. 28, hereinafter the
1980 Convention), by the Hague Conference on Private International Law ( HCPIL). It entered into force
on December 1, 1983, and governs issues related to parental kidnapping or the removal of children under
the age of 16 across international borders and involving the jurisdiction of different countries’ courts. The
1980 Convention has the stated objectives of securing the prompt return of children wrongfully removed
to or retained in any contracting state and of ensuring that the rights of custody and of access under the
law of one contracting state are effectively respected in the other contracting states. 1
As of January 2004, there were 80 Member States of the 1980 Convention. Of these, the
accessions of 59 have been accepted by the United States, the most recent one being Brazil ( see appended
Chart). Under the current review process of the U. S. Department of State ( DOS) affecting the twenty
contracting states whose accession has not yet been accepted by the United States, the DOS is expediting
acceptance in the sequential order of their joining the 1980 Convention. Non- Member States of the 1980
Convention include primarily Middle Eastern, African, Asian, and Central Asian countries or territories. 2
I. Member States: Issues and Problems
Although the 1980 Convention may be considered a milestone in the uniform treatment of cases
of international child abduction and it has been hailed as one of the most successful Hague Conventions,
some inherent weaknesses in the agreement have meant that it has not always worked as intended. Non-
Governmental Organizations ( NGOs) have also criticized the 1980 Convention, or the Central Authorities
responsible for its domestic implementation, for allowing many cases to remain unresolved and their
numbers to be underestimated. 3
LAW LIBRARY OF CONGRESS – 2
the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U. S. Dept. of Justice. Mr. Allen was President and Chief
Executive Officer of the NCMEC at the time the report was produced. In 1999, the Center established the International Centre for Missing &
Exploited Children, to serve as a global resource center with an international network.
4 Gloria Folger DeHart, The Relationship Between the 1980 Child Abduction Convention and the 1996 Protection Convention, 33
N. Y. U. J. INT’L L. & POL. 83 ( 2000); abstract by Caylin E. DeBlasio, available at http:// www. nyu. edu/ pubs/ jilp/ main/ issues/ 33/ f. html, with
hyperlink to full text. Ms. DeHart was an Attorney Adviser with the Office of the Assistant Legal Adviser for Private International Law, United
States Department of State, and U. S. Delegate to the Hague Conference on Private International Law for the development of the 1996 Protection
of Children Convention at the time the article was written. For other views of the 1980 Convention see for example in the same journal issue:
Thomas A. Johnson, The Hague Child Abduction Convention: Diminishing Returns and Little to Celebrate for Americans, id. at 125, via
http:// www. nyu. edu/ pubs/ jilp/ main/ issues/ 33/ f. html, and Carol S. Bruch, Religious Law, Secular Practices, and Children’s Human Rights in
Child Abduction Cases Under the Hague Child Abduction Convention, id. at 49, via http:// www. nyu. edu/ pubs/ jilp/ main/ issues/ 33/ d. html. Some
additional papers are also available via Australia’s Family Court website, at http:// www. familycourt. gov. au/ papers/ html/ child_ abduction. htm.
5 Linda Silberman, The Hague Child Abduction Convention Turns Twenty: Gender Politics and Other Issues, 33 N. Y. U. J. INT’L L.
& POL. 221 ( 2000).
6 Id.
With regard to Member States, problem areas can be categorized as those related to compliance
( e. g., differing interpretations of the 1980 Convention or insufficiently trained judges) and those related
to non- compliance ( e. g., non- enforcement of procedures, refusal to return children).
A. Problems Related to Compliance
It has been argued that attempts by the 1980 Convention to provide for cultural neutrality in
abduction disputes may be undermined by subjective state judgements in the domestic courts of the
Member States.
Serious problems apparently emerged with the 1980 Convention with regard to the interpretation
of defenses to return. The most common defense, under article 13, is that a return may be refused if there
is a “ grave risk” to the child of potential physical or psychological harm or an intolerable situation.
Instead of construing the provision narrowly, as intended, courts in return proceedings imposed their own
view of the “ best interest of the child” ( a principle where the court ruling on custody, not return, should
apply). 4
In addition to the problem of courts’ interpretation of defenses provided for the return of children,
the ambiguity of certain 1980 Convention terms like custody rights may result in different interpretations
and prevent uniformity. 5 “ Rights of custody” are defined for the purposes of the 1980 Convention as
“ rights relating to the care of the person of the child and, in particular, the right to determine the child’s
place of residence” ( article 5( a)).
A third area in which domestic courts may impose subjective interpretations is the issue of
children’s rights and human rights. Some states’ courts have reportedly interpreted a child’s right to be
heard ( under article 12 of the UN Convention on the Rights of the Child) as grounds for turning Hague
hearings into domestic ones, thereby undermining the legitimacy of the 1980 Convention’s procedures. 6
B. Problems Related to Non- Compliance
Problems of non- compliance by some Member States, such as attempts to condition the return of
children; the lack of adequate procedures to enforce access and visitation rights; and in particular the
LAW LIBRARY OF CONGRESS – 3
7 DeHart, supra note 4; and for a detailed look at problems with compliance as of March 2001, see Peter Nygh, Review of the Hague
Convention on the Civil Aspects of Child Abduction– the March 2001 Meeting of the Special Commission [ of the HCIPL], a paper presented at
the 25th Anniversary Conference, Justice, Courts & Community, July 26- 29, 2001, Sydney, Australia, available at
http:// ww. familycourt. gov. au/ papers/ html/ nygh. html. Mr. Nygh was a Member of the Australian Delegation to the Fourth Review Special
Commission.
8 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction ( Apr. 2001), at
http:// travel. state. gov/ 2001_ Hague_ Compliance_ Report. html. Many of the countries are also cited as being problematic in the Senate
Concurrent Resolution 98– Urging Compliance with the Hague Convention on the Civil Aspects of International Child Abduction ( Senate- Mar.
23, 2000), available at http:// thomas/ cgi- bin/ query/ z? c106: S. CON. RES. 98:.
9 See for example Hickman’s Resource Center, Overview: German History of child Abduction & Boycott of Access, at
http:// www. michael- hickman. org/ eng/ german_ history/ german_ history_ caboa. html; CRC Watchdog, Quality Human Rights Violations Made
in Germany: Innerstate & International Events - 2001, at http:// www. crc- watchdog. org/ content/ germany/ events_ 01. html; William McGurn,
Sweden Fights To Protect Child Abductors: Amanda Won’t Be Home for Christmas, OPINION JOURNAL ( WSJ), Dec. 23, 2002, at
http:// www. freerepublic. com/ focus/ news/ 811221/ posts.
10 Silberman, supra note 5.
11 See for example House of Commons Hansard Debates for 3 May 2001 ( pt 35), under “ Child Abduction” and “ Sir John Stanley
( Tonbridge and Malling), United Kingdom Parliament site, at http:// www. parliament. t he - s ta ti oner y-office.
co. uk/ pa/ cm200001/ cmhansard/ vo010503/ debtext/ 10503- 35. htm.
12 See Guide to Good Practice, at http:// www. hcch. net/ e/ conventions/ guide28e. html and Background Document, at
http:/ ftp. hcch. net/ doc/ prevmeas_ backe. doc.
13 See Judicial Seminar on the International Protection of Children, De Ruwenberg, Oct. 20- 23, 2001, available at
http:// www. hcch. net/ e/ conventions/ seminar. html.
continued resistance to return children at all, based on routine invocation of article 13 ( the “ grave risk”
defense) among others; have inhibited the intended operation of the 1980 Convention. 7
In the 2001 DOS report to the U. S. Congress on compliance with the 1980 Convention, Austria,
Honduras, Mauritius, and Panama were cited as “ noncompliant countries;” Mexico as a country that is
“ not fully compliant;” and Germany and Sweden, among others, as “ countries of concern.” 8 Although
some steps have apparently been taken by Germany ( see below) and Sweden to remedy the situation,
instances of non- compliance and intransigence apparently continue to be reported. 9
C. Proposed Remedies
It has been suggested that increased specialization of judges to handle only Hague cases and
targeted judicial training programs might help limit interpretation problems, as well as decrease delays
in the judicial process. Reform of national laws might also expedite the process. Means of strengthening
the 1980 Convention’s abduction procedures might include giving state officials the authority to locate and
return children and better enforcing return orders in general. 10 To combat the wide variation in practice
of the 1980 Convention’s operation and overcome weaknesses of the 1980 Convention, agreement on a
Good Practice Guide developed by the Permanent Bureau of the HCPIL has been welcomed. 11 The
Permanent Bureau also determined that it would establish a Consultative Group of experts to advise on
preventive measures against abductions. 12
In addition, judicial conferences on international child protection have been facilitated by the
Permanent Bureau, to allow judges and experts from Member States to discuss problem areas and make
recommendations for improvements. Several such seminars have been held between Germany and the
United States; for example, one was held at Germany’s initiative in 2001.13
LAW LIBRARY OF CONGRESS – 4
14 U. S. DOS Bureau of Consular Affairs, “ Open Abduction Cases by Country,” available at
http:// travel. state. gov/ 2003_ June_ Hague_ Attach. html.
15 Caroline Gosselain, Child Abduction and Transfrontier Access: Bilateral Conventions and Islamic States– A Research Paper, p. 9,
prepared for the Permanent Bureau as Preliminary Document No. 7 of August 2002 for the Attention of the Special Commission of
September/ October 2002, available at http:// www. hcch. net/ e/ conventions/ report28e. html, under the heading “ 2002.”
16 Id. at 8- 9. See also U. S. DOS Bureau of Consular Affairs website, at http:// travel. state. gov/ islamic_ family_ law. html. For
overviews of the Islamic family law systems of several individual countries, see for example ANNE- MARIE HUTCHINSON and HENRY SETRIGHT,
INTERNATIONAL CHILD ABDUCTION ( Bristol, England, Family Law, 1998).
17 Pamela Constable, Women in Iraq Decry Decision To Curb Rights– Council Backs Islamic Law on Families, THE WASHINGTON POST,
Jan. 16, 2004, at http:// www. washingtonpost. com. The decree is described as “ brief and vague” and apparently makes no specific reference
to family law issues or to branches of Islamic law ( such as the strict sharia legal doctrine) that would replace the Civil Code. This ambiguity,
according to lawyers and other experts in Iraqi women’s groups, is of particular concern, however, because different Islamic sects in Iraq
apparently advocate different policies for the legal and marital rights of women. Id.
II. Non- Member States: Issues and Problems
Various reasons have been adduced in cases where a given jurisdiction has not become a
contracting state. At present many African countries may be either too embroiled in civil unrest or too
impoverished to focus on issues like parental child abduction; if anything, the concern is fighting abuses
of children’s rights, such as their being kidnaped to be soldiers. There also may not be much pressure
on African countries to join because of the relative lack of international child abduction cases involving
them. For example, the largest number of open abduction cases the United States has with an African
nation is reportedly seventeen with Nigeria. 14
In regard to countries of Islamic tradition, acceding to the 1980 Convention is apparently
problematic because of their different concept of family law. Such countries tend to give privilege to
nationality or religion, either in accordance with specific provisions of their Civil Codes or in accordance
with existing case law. 15 Although under international law “ the interests of the child” generally guide
parenting arrangements following marital disputes, Western legal systems characteristically provide for
an equal sharing of parental responsibility and the concept of joint custody, whereas under Islamic law
parental responsibilities are distributed in a non- equal and complementary manner. Custody is attributed
to the mother, depending on the sex of the child and different interpretations of Koranic law; parental
authority, insofar as guardianship is involved, is attributed to the father. Moreover, according to Islamic
law, Islamic personal status is given priority if conflicts of nationality arise in a mixed marriage with a
non- Islamic spouse. 16 Islamic law and its relation to secular law may also vary from country to country
and within a single country. For example, multiethnic Iraq has many different religious schools but also
a Civil Code, developed under secular governments since 1959, that has relatively modern legal
protections for a Muslim country and that prohibits male favoritism in child custody disputes. Iraqi
professional women have voiced concern, however, that a Governing Council decision approved on
December 29, 2003, ordering that family laws be “ canceled” and issues be placed instead under the
jurisdiction of Islamic law, may jeopardize such protections, even if at present there is no threat of its
becoming law. 17
It may be noted that Islamic law may also be applied in Western state parties to the 1980
Convention and enforced in Western courts. This complicating factor creates a burden on those courts
LAW LIBRARY OF CONGRESS – 5
18 Germany is a case in point. See Mathias Rohe, Islamic Law in German Courts, available at
http:// www. comune. pisa. it/ casadonna/ htm/ hawwa/ rohe. pdf.
1 9 Jun Yokoyama, General Survey of Private Law Issues in Asia 5 ( c. 2003), at
http:// www. soc. nii. ac. jp/ jsil/ Panel% 20E1% 20Yokoyama% 20paper. pdf.
20 Doug Struck and Psychic Sakamaki, Divorced From Their Children in Japan, Foreign Fathers Have Few Custody Options,
WASHINGTON POST Foreign Service, 2003, included in Dads Divorce Magazine- Essays, available at
http:// www. dadsdivorce. com/ mag/ essay. php/ 0717Japan. html; Children’s Rights Council Japan, Children’s Rights Issues in Japan,
http:// www. crcjapan. com/ en/ issues. html, as last modified Jan. 1, 2004.
21 See Parliament of Australia, Senate, Helping Australians Abroad: A Review of the Australian Government’s Consular Services, Ch.
2: International Consular Arrangements, under 2.8, at http:// www. aph. gov. au/ Senate/ committee/ fadt_ ctte/ consular/ report/ c02. htm. No date
given; from the context it seems to be a 1997 document. Section 2.8 states that the Australian Government had “ been encouraging regional
countries and major migrant source countries to accede to the Convention.”
22 Nygh, supra note 7.
23 These are mentioned in Gosselain, supra note 15.
to preserve the state’s public order, constitutional rights, and the legal standard of human rights while
respecting the needs in special cases of persons who maintain a foreign nationality. 18
For other states, the multiple legal systems of religious minorities makes adherence to the 1980
Convention problematic, because no single uniform family law is applicable. Insofar as possible, states
like India, Indonesia, Malaysia, the Philippines, and Singapore leave domestic law issues to each minority
judicial system to handle. In Malaysia, moreover, legislative competence in Islamic law is attributed to
each state rather than to the Federation. 19 In general among Asian countries, private international law
rules are not uniform, even if individual countries are homogeneous societies with a homogeneous legal
system.
Some countries, like Indonesia and Japan, simply have not seen any benefit in joining the 1980
Convention, because removal of children from their territory is not currently a problem. It has been
pointed out that for Japan, “ politically, there is no strong incentive” to ratify the 1980 Convention,
because it would have to return abducted children to foreign spouses. At present, Japan does not enforce
child custody orders from foreign countries, nor is parental kidnapping deemed a crime there. As for
future prospects for Japanese membership in the 1980 Convention, a Foreign Affairs Ministry spokesman
commented that Japan has been studying the 1980 Convention since its ratification and therefore has not
yet ratified it. 20
Other countries, like Papua New Guinea and the Philippines, have indicated in the past that they
were considering membership, but they have not taken any steps to actualize it. 21 Still others, for example
the People’s Republic of China, have sent observers to a Special Session of the 1980 Convention and
reportedly indicated an intent to become a Party, but have not yet done so. 22
III. Related Major International and Regional Child Abduction Agreements
There are several other major international and regional agreements having to do with international
parental child abduction in addition to the 1980 Convention. On October 19, 1996, the HCPIL opened
for signature the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and
Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children ( Hague
No. 34) ( hereinafter the 1996 Convention). It entered into force on January 1, 2002.23
LAW LIBRARY OF CONGRESS – 6
24 19 I. L. M. 273 ( 1980).
25Available in English translation on the OAS website, at http:// www. oas. org/ juridico/ english/ treaties/ b- 53. htm.
26 See Council Regulation ( EC) 2201/ 2003, Concerning Jurisdiction and the Recognition and Enforcement of Judgments in
Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation ( EC) No 1347/ 2000. 2003 OJ [ Official Journal of the
European Communities] ( L338/ 1) ( Dec. 23, 2003). The Regulation is discussed in detail in the Law Library of Congress report on the European
Union, infra.
27 G. A. res. 44/ 25, annex, 44 U. N. GAOR supp. ( No. 49) at 167, U. N. Doc. A/ 44/ 49 ( 1989), entered into force Sept. 2, 1990. The
text is available on the Office of the High Commissioner for Human Rights of the U. N. website, along with the status of ratifications and States’
reservations, at http:// www. unhcr. ch/ html/ menu3/ b/ k2crc. htm.
28 See How Many Countries Have Ratified the Convention? at http:// www. unicef. org/ crc/ faq. htm.
29 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/ LEG/ 24.9/ 49 ( 1990), available at http:// www. africa-union.
org/ home/ Welcome. htm ( click “ Official Documents” then “ Treaties, Conventions, & Protocols”). The Charter entered into force on Nov.
29, 1999. Some 46 of 53 African Union Member States have signed and/ or ratified the Charter.
30 See News and Events for 2003, entry date 01/ 04/ 2003, at http:// www. hcch. net/ e/ events/ events. html.
Regional agreements include the Council of Europe’s European Convention on Recognition and
Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children of
May 20, 1980 ( also known as the Luxembourg Convention) 24 and the Inter- American Convention on
International Return of Children ( Montevideo Convention) that was opened for signature on July 15, 1989,
by the Organization of American States. 25 Also noteworthy is a new Regulation of the European Union,
adopted in November 2003, whose aim is to curb the number of child abduction cases among EU Member
States. Directly applicable in March 2005, the Regulation establishes which court will have jurisdiction
over such cases, provides for automatic recognition and enforcement of access rights among all Member
States, and recognizes the right of the child to enjoy contact with both parents. 26
There are also more general conventions on the protection of children. The United Nations set
down basic principles for the legal protection of children worldwide in the United Nations Convention on
the Rights of the Child of November 20, 1989.27 As of November 2003, 192 countries had become state
Parties to this Convention – more than any other human rights treaty in history. 28 The Vienna Convention
on Consular Relations of April 24, 1963, like the U. N. Convention, serves as a basis for cooperative
bilateral agreements concerning child custody ( see also below). The African Union does not have a
convention on international parental child abduction, but there is the African Charter on the Rights and
Welfare of the Child, which was adopted by the Organization of African Unity on July 11, 1990. The
Charter has provisions on the best interests of the child, the enjoyment of parental care, and the prevention
of parental abduction, among others. 29
Thus, even if a state is not a Member of the 1980 Convention, it may cooperate with other states
by means of other international instruments in the handling of parental abduction and child custody cases.
IV. Bridging the Gap Between Member and Non- Member States
One means of circumventing the differences in approach to custody issues between Western and
Islamic legal traditions may be the 1996 Hague Convention. The HCPIL describes it as, providing “ a
remarkable opportunity” for building bridges between legal systems with diverse cultural or religious
backgrounds, and notes that Morocco, which has an Islamic legal system, was one of the first states to
ratify it. 30 The 1996 Convention is seen as reducing some of the flaws in the 1980 Convention noted
LAW LIBRARY OF CONGRESS – 7
31 DeHart, supra note 4.
32 Gosselain, supra note 15, at 11- 22.
33 Frequently Asked Questions ( regarding international parental child abduction), available at http:// travel. state. gov/ ci_ faq. html.
34 See United Kingdom- Pakistan Judicial Conference on Child and Family Law, London, England, Jan. 15- 17, 2003, at
http:// www. hcch. net/ e/ conventions/ seminar. html.
above by providing for new jurisdictional rules, specifications on choice of law, and a strong enforcement
regime. In so doing, it makes the non- return of the child a final resort. 31
Another possible means of resolving international custody and access conflicts is through the use
of bilateral instruments. These may take various forms, e. g., bilateral conventions on administrative and
judicial cooperation ( including those inspired by multilateral conventions like the 1980 Convention and
Luxembourg Convention, limited cooperation agreements, and specific bilateral agreements), consular
cooperation agreements, and administrative agreement protocols. France, for example, has forged
agreements of these types with Algeria, Egypt, Lebanon, Morocco, and Tunisia. The Franco- Moroccan
and Franco- Tunisian conventions have been described as appearing to be the nearest syntheses of the
Hague and Luxembourg Conventions. While including “ classical provisions” found in multilateral
Convention- inspired bilateral instruments, a 1988 Franco- Algerian Convention also innovates by
prescribing that the rights of custody and the rights of access across international borders must be linked.
Australia, Belgium, and Canada have also concluded bilateral agreements with Islamic countries. 32 The
U. S. DOS has indicated, however, that the U. S. Government prefers to enter into multilateral treaties in
matters of private international law, because they provide most of the mutual benefits to be expected from
a bilateral treaty ( while also facilitating the development of a unified legal regime among the states parties)
and do not entail the “ long, uncertain, and resource intensive process” that is required for Senate consent
to bilateral treaties. 33
Judicial conference may also be a means of resolving problems related to child abduction cases
between states party to and not party to the 1980 Convention. As a result of a January 2003 United
Kingdom- Pakistan judicial conference on child and family law, for example, the two sides reached a
consensus on principles to be followed in handling such cases involving their respective citizens. 34
Prepared by Dr. Wendy Zeldin
Senior Legal Research Analyst
January 2004
LAW LIBRARY OF CONGRESS – 8
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1 Many civil law countries require that in order for a foreign judgment to be enforced domestically, an exequatur must be issued. An
exequatur proceeding is a requested court order declaring that a foreign judgment is enforceable. See Dahls’ Law Dictionary, at 185.
2 See COM( 2002) 222 final.
3 OJ L338/ 1 ( 12/ 23/ 2003).
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IMPLICATIONS OF EUROPEAN UNION REGULATION
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
In the European Union ( E. U.), a community composed of multicultural and multiethnic societies,
where citizens move freely across borders, the abduction of children is a growing problem. Frequently,
abductions occur among E. U. citizens, residents of a particular Member State, who decide either to
wrongfully remove or illegally retain a child in the territory of another E. U. Member State. The Members
that have witnessed an increased number of abduction cases are France, Germany, and the United
Kingdom, while others, such as Greece and Portugal have dealt with fewer cases. Since all the Members
are contracting parties to the 1980 Hague Convention on the Civil Aspects on International Child
Abduction, E. U. citizens whose custody rights have been violated have extensively utilized the procedures
established by this Convention.
However, as of March 1, 2005, any abduction cases involving E. U. Members will also be
governed by a new Regulation adopted on November 27, 2003. Several of its key provisions on
jurisdiction and returning children will take precedence over the equivalent provisions of the Hague
Convention. The latter will continue to govern issues not dealt by the Regulation, as well as abduction
cases involving E. U. Members and third countries that are also parties to the Convention.
One of the Regulation’s objectives is to eventually eliminate the abduction of children in the
Community through the abolition of exequatur, 1 so that decisions on access rights and the return of the
child in one Member State will be automatically recognized and enforced in another Member State.
Another important step is the recognition and enforcement of the right of a child to retain contact
with both parents. The European Commission anticipates that application of this Regulation by the
Member States may have “ a deterrent effect” on future abduction cases. 2
I. Council Regulation ( EC) No 2201/ 2003
A. Legal Basis
The Council Regulation ( EC) No 2201/ 2003 bears the title: Concerning Jurisdiction and the
Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental
Responsibility, repealing Regulation ( EC) No 1347/ 2000.3 Its legal basis is provided by articles 61( c) and
67( 1). The first authorizes the Council to adopt measures in the area of judicial cooperation in civil
matters, and the latter allows the Members States to share the right of initiative to introduce a new piece
of legislation with the Commission for a limited period. The Regulation was based on a proposal from
LAW LIBRARY OF CONGRESS – 10
4 By virtue of Decision No 2001/ 470/ EC.
5 The Regulation enters into force on Aug. 1, 2004.
the Commission and on an initiative presented by France in 2000, regarding mutual enforcement of
judgments on rights of access to children.
B. Scope
The scope of this Regulation is not limited to issues related to child abduction. In general, it
intends to solve conflicting issues related to jurisdiction, recognition, and enforcement of judgments in
family relations and questions of parental responsibility. Recognition and enforcement of judgments in
family matters is an important aspect in the Union’s effort to create a common judicial area in civil
matters, based on trust and confidence in the judicial systems of its Members.
Protection of children and according respect to their basic rights are reflected in a number of
provisions. Certain principles which are common to the legal systems and traditions of the Members, such
as equality of all children before the law irrespective of marriage of parents and the best interest of the
child, are recognized in the Preamble of the Regulation. Mention is also made to article 24 of the Charter
of Fundamental Freedoms Protection, proclaimed in Nice in 2000, which recognizes three basic rights that
are relevant and essential in abduction cases: children’s voices and opinions must be heard on issues that
are of concern to them; the child’s best interest must be taken into consideration; and a child has the right
to maintain a personal relationship and contact with both parents on a regular basis.
C. Definitions
Several of the terms and concepts used in the Regulation were modeled after the Hague
Convention. Thus, “ wrongful removal or retention” of a child occurs when:
• the removal or retention violates the rights of custody acquired by judgment or by
operation of law or by an agreement of the Member State where the child had its
habitual residence immediately prior to being removed or retained;
• the custody rights were actually exercised, either jointly or alone, at the time of
removal or retention.
The term of “ rights of custody” is defined as including the rights and duties relating to the care
of a child and especially the right to determine the residence of the child. “ Rights of access” include the
right to take a child to a place other than his habitual residence for a limited period.
II. Critical Issues in Abduction Cases
A. Central Authority
The Members are required to designate one or more Central Authorities to ensure the smooth and
effective application of the Regulation. These authorities may communicate through the European Judicial
Network established in 2001.4 The Members must also forward the names, addresses, and means of
communication for the Central Authorities, and the languages accepted for the communications, to the
Commission within a 3- month period after this Regulation enters into force. 5
LAW LIBRARY OF CONGRESS – 11
6 See art. 55 of the Regulation.
7 See art. 11 of the Regulation.
A parent whose custody rights have been violated may proceed either through the Central
Authority of his residence or directly approach the central authority of the Member State where the child
has been taken. The Central Authority is empowered to perform the following tasks: 6
• collect and exchange information on the status of the child and on decision related to
the child
• provide information and assistance to those who have custody rights
• facilitate communication between courts, especially in case a court has decided not to
return a child under article 13 of the Hague Convention ( In this case, a copy of the
court’s order on non- return and other documents must be transferred to the court in the
Member State where the child has its habitual residence immediately prior to being
wrongfully removed or retained.)
• facilitate communication between the court which has jurisdiction with another court,
if the original court decides to transfer the case to a court in another Member State on
the grounds that the child in question has a particular connection to the other State and
the second court is better suited to hear the case.
III. Return of the Child7
Recital 17 of the Preamble clarifies that in case of wrongful removal or retention of a child, the
provisions of the Hague Convention will continue to apply, as complemented by article 11 of the
Regulation. A parent whose custody rights have been violated has the right to file an application to
request the return of the child based on the Hague Convention. In this case, the Regulation imposes a
number of procedural safeguards, which must be followed by the courts of the Member States. These
require that:
• the child be given a chance to be heard during the proceedings, depending on his age
and maturity;
• the court must act expeditiously in such proceedings based on national law provisions;
• the court should render its decision within 6 weeks after the application is filed before
the court, unless it is impossible to do so;
• the court cannot refuse to return a child based on article 13b of the Hague Convention
if it has been established that security measures have been taken to protect the child
after his return;
• the court cannot refuse to return the child unless it has heard the person who requested
the return of the child.
LAW LIBRARY OF CONGRESS – 12
8 See art. 10 of the Regulation.
9 See art. 40 of the Regulation.
10 The form of the certificate is appended to the Regulation.
IV. Jurisdiction8
The Regulation establishes that the court of the Member State where the child had its habitual
residence immediately prior to being illegally removed or retained, retains its jurisdiction, until the child
acquires a habitual residence in another Member State and:
• the person with custody rights has acquiesced to the child’s removal or retention; or
• the child has resided in that other Member State for a period of at least 1 year, after
the person with custody rights has had or should have had the knowledge of the
whereabouts of the child, and the child has settled in his new environment. In this
case, a number of additional conditions must exist, including the requirement that no
request to return the child has been filed within a year from the person with custody
rights discovering the child’s whereabouts; a request to return the child has been
withdrawn, and others.
V. Enforceability of Judgments concerning Rights of Access and Judgments Requiring the
Return of the Child9
An important innovation introduced by this Regulation is the abolition of exequatur, or the filing
of a request in a domestic court to declare a foreign judgment enforceable. As a result, the rights of
access granted in a judgment are recognized and enforceable automatically in another Member State,
provided that the judge who decided on question of visitation rights has issued a certificate. 10
The same applies to judicial orders for the return of the child; there is no requirement for a
declaration of enforceability to be issued by a domestic court. The judge, who ordered the return of the
child will issue a certificate of enforceability, provided that the following criteria are met:
• the child was given an opportunity to be heard, unless it was not appropriate due to the
child’s age;
• the parties involved had an opportunity to be head; and
• the court that issued the order had taken into consideration the provisions of article 13
of the Hague Convention.
VI. Conclusion
As the EU moves into gradually establishing a common judicial area in civil matters, and as
abduction of children becomes a more common phenomenon, especially in interstate marriages, the need
to establish concise rules to resolve conflicts of jurisdiction at the EU level in cases of parental abduction
and child retention has become apparent. Adoption of Regulation ( EC) No 2201/ 2003 by the EU
accomplishes three basic objectives: resolves a thorny conflict of jurisdiction matter, by determining that
the court of the Member State where the child was habitually resident prior to being illegally removed or
LAW LIBRARY OF CONGRESS – 13
retained, retains its jurisdiction until the child acquires a habitual residence in another Member State;
recognizes the child’s right to enjoy contact with both parents; and abolishes exequatur procedure through
the automatic recognition and enforceability of access rights by all Members. However, whether or not
the applicability of this Regulation, as of 2005, by EU Members will discourage future child abduction
cases across the Community, as the Commission anticipates, remains to be seen.
Prepared by Theresa Papademetriou
Senior Legal Specialist
March 2004
LAW LIBRARY OF CONGRESS – 14
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1 Law 23857 of Oct. 19, 1990 in BOLETIN OFICIAL [ B. O.] Oct. 31, 1990.
2 Countries where the Agreement is effective with the Argentine Republic: Australia, Austria, Bahamas, Belarus, Belgium, Belize,
Bosnia and Herzegovina, Brazil, Burkina Faso, Canada, Colombia, Costa Rica, Croatia, Chile, China, Hong Kong Region, China- Macau,
Cyprus, Denmark, Ecuador, Slovakia, Slovenia, Spain, United States of America, Former Republic of Yugoslavia, Fiji, Finland, France,
Georgia, Germany, Greece, Honduras, Hungry, Ireland, Iceland, Israel, Italy, Luxembourg, Malta, Mauricio, Mexico, Moldova, Monaco,
Norway, Netherlands, New Zealand, Panama, Paraguay, Poland, Portugal, UK ( Isle of Man, Cayman Islands, Falkland Islands, Montserrat,
Bermuda), Check Republic, Romania, Saint Kitts and Nevis, South Africa, Sweden, Switzerland, Turkmenistan, Turkey, Uruguay, Uzbekistan,
Venezuela, Yugoslavia, and Zimbabwe.
3 Law 24190 Ley de Ministerios, art. 17 inc. 11 and Decree 488/ 92 and Ministerial Resolution 203/ 94. Ministry of Foreign Affairs,
International Trade and Worship, General Department for Legal Matters, Division for International Legal Assistance, address: Esmeralda 1212 -
4th floor ( 1007) - Federal Capital - Argentine Republic, Telephone: ( 54) 11 4 819- 7000 extensions: 7629/ 7187, Fax: ( 54) 11 4 819- 7170/ 7121
email: menores@ mrecic. gov. ar .
2004- 92
LAW LIBRARY OF CONGRESS
ARGENTINA
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
The Hague Convention on the Civil Aspects of International Child Abduction adopted on October
25, 1980, during the 14th Session of the Hague Conference on Private International Law, was ratified by
Argentina1 effective June 1, 1991. On May 31, 1998, pursuant to article 45 of the Convention, the
Argentinean government transmitted a declaration rejecting the extension of the Convention to the
Falkland Islands by the United Kingdom of Great Britain and Northern Ireland. Argentina also reaffirmed
its sovereign rights over the Malvinas ( Falkland Islands), South Georgia, and South Sandwich Islands.
It applies to all countries Argentina recognizes as parties thereto. 2
I. Domestic Laws and Regulations Implementing the Hague Convention
The Central Authority for the Convention in Argentina is the Dirección General de Asuntos
Jurídicos- Dirección de Asistencia Judicial Internacional of the Ministry of Foreign Affairs, International
Commerce and Worship. 3
A. Return Requested from Abroad
The Central Authority addresses only the administrative and informational functions, because the
judiciary always decides on the return of a child or the visitation schedule. Once an application for return
has been received, the Central Authority will verify that the petition complies with all the requirements
provided for under the Convention. Before seeking a child' s return or voluntary visitation from the parent
in whose residence the child is located, the Central Authority must obtain the prior approval of the
requesting parent. If the child’s return or voluntary visitation schedule does not take place at this first
stage, the petition will have to be submitted by a private attorney to the competent court. The Central
Authority will provide the appropriate court with a general background of the Convention and will also
offer its assistance to the court during the proceedings.
The Central Authority' s role is administrative and informative, whereas the judiciary decides on
the feasibility of the application for return or access rights.
LAW LIBRARY OF CONGRESS – 16
4 Jose Carlos Arcagni, La Convención de la Haya sobre los Aspectos Civiles de la Sustracción Internacional de Menores y el Derecho
Internacional Privado Tuitivo, 1995- D REVISTA JURÍDICA ARGENTINA LA LEY, Sec. Doctrina, 1032 ( Buenos Aires, 1995).
5 Law 26358 of November 1st, 2000 in Boletin Oficial ( B. O.) Dec. 12, 2000.
6 Member countries are: Argentina, Belize, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Haiti, Mexico, Paraguay,
Peru, Uruguay and Venezuela, see http:// www. oas. org/ juridico/ spanish/ firmas/ b- 53. html.
7 Supra note 5, art. 1.
However, the Central Authority does not provide legal assistance to private individuals during the
proceedings before Argentine courts. A private lawyer will have to be hired to carry out the judicial
aspect of the request. Those who cannot afford a private lawyer, and who qualify, may obtain the
assistance of a public funded attorney.
Similarly, once the judicial stage has been instituted, the Central Authority will be at the Court
and the parties' disposal to provide any information necessary for the implementation or application of the
Convention with regard for the best interest of the child.
When the minor' s domicile has not been located, the Argentine Central Authority will inform
Interpol, the agency which will be in charge of locating the minor in question.
B. Return Requested from Argentina
The petitioner must fill out a standard set of forms from the Central Authority and return them
to the Central Authority in triplicate. This form requests all the information necessary to locate the child,
including identity information concerning the child and the person who has taken the child; the child' s date
of birth; the reasons for claiming the return; and information on the presumptive domicile of the child.
A copy of the judicial decision or agreement on the custody of the child may also be attached. 4 Seeking
legal counsel is recommended in order to complete the form, although this is not required. In case the
petition is addressed to a non- Spanish speaking country, the forms will have to be submitted both in
English and Spanish.
Once all documents have been submitted, the Central Authority will evaluate whether the case
meets all the requirements of the Convention. If the case is admitted, the Central Authority will send the
return and visitation petition to the Central Authority of the requested country. The proceedings abroad,
of course, will depend on the internal regulations of the respective Central Authority together with the
procedural norms applied by the competent courts. In many cases the petitioner will have to hire a private
attorney in the requested country. If the petitioner cannot afford to hire a private attorney, he may
investigate whether he qualifies under Argentine law to receive free legal advice and become eligible for
such assistance abroad.
The petitioner will be kept informed by the Argentine Central Authority about the status of his
case since both Central Authorities will be in constant contact about the case.
Argentina has also become a member to the Inter- American Convention on International Return
of Minors ( IACIRM) adopted in Montevideo, Uruguay, on July 15, 1989, and ratified by Argentina on
November 1, 2000.5 This Convention applies to any return case involving a minor whose permanent
residence is in any of the member countries6 and has been illegally or wrongfully taken abroad. The
Convention also applies to the enforcement of visitation and custody rights. 7 The IACIRM also provides
LAW LIBRARY OF CONGRESS – 17
8 Id. art. 34.
9 O. y Florit, Código Penal de la República Argentina, Editorial Universidad, Buenos Aires, 1997.
10 Id. art. 146.
11 Id. at 347.
12 Cámara Nacional Criminal y Correccional, Sala II, December 3, 1987, in Boletín de Jurisprudencia Cámara Nacional Criminal
y Correccional, 1987, No. 4 at 1680; Sala III, May 27, 1992 in Boletín de Jurisprudencia Cámara Nacional Criminal y Correccional, 1992,
No. 2, at 141; Sala I, June 28, 1994, in Boletín de Jurisprudencia Cámara Nacional Criminal y Correccional, 1994, No. 2, at 77.
13 Law 24270 of Nov. 3, 1993, amending the Criminal Code published in B. O., Nov. 25, 1993.
14 Id. art. 1.
15 Id. art. 2.
16 Id. art. 3.1.
17 Id. art. 3.2.
that for members of the Organization of American States that are party to this Convention and also party
to the Hague Convention on Civil Aspects of International Child Abduction, the IACIRM will apply,
unless stated otherwise between the parties through bilateral agreements. 8
II. Domestic Laws Regarding Child Abduction and Parental Visitation
Under the Criminal Code, 9 the punishment for anyone who takes and hides a minor 10 years of
age or younger from the control of his parents, guardian, or person in charge of him is 0imprisonment
from 5 to 15 years. 10 Scholarly opinion is not clear on whether a parent who takes a child from the other
parent is guilty of this crime. 11 However, a number of court decisions12 have suggested that any parent
who takes and keeps a child out of the control of the parent who has been judicially assigned the custody
of the child is guilty of this crime.
Law 2427013 created the crime of Impedimento de Contacto de Hijos Menores con sus Padres no
Convivientes ( preventing minors from having contact with the non- custodial parent). Therefore, the parent
or a third person who illegally prevents or obstructs contact between a minor and his non- custodial parent
will be punished with imprisonment from 1 month to 1 year. If the child is younger than 10 years of age
or handicapped, the punishment is imprisonment from 6 months to 3 years. 14
The same sanctions would apply to the parent or third person who, in order to prevent the parent
not living with the child from contacting him, takes the child to another domicile without judicial
authorization. If, with the same purpose, such a person takes the child out of the country, the punishment
would increase up to double the minimum and half of the maximum. 15
In such cases, the court must take all necessary measures to restore the parent' s contact with the
child within 10 days. 16 The court must also establish a provisional visitation schedule to be applied for
not more than 3 months, or if there is already a visitation schedule, the court must enforce it. 17
Although articles 5 and 21 of the Convention guarantee some type of visitation schedule during
the return proceeding, the courts have interpreted these provisions narrowly considering that the
LAW LIBRARY OF CONGRESS – 18
18 Id. at 1034- 1035.
19 Id. at 1035.
20 Id.
21 Id.
22 Código Civil, Zavalia, Buenos Aires, 1999, art. 264 quarter.
Convention does not expressly require member countries to establish or enforce a visitation schedule
during the conventional procedure. 18 There are some scholarly opinions to the contrary; some authors19
have interpreted the Convention as very clear in requiring Central Authorities to file petitions for
visitation, as well as return purposes. According to J. C. Arcagni, the Convention does not require the
precondition of enforcing parental visitation rights to the issue of abduction itself. According to this
author, the narrow interpretation that the courts have adopted may be due to the fear that visitation rights
that may require taking the child out of his habitual residence or domicile may create the risk of
abduction. 20 Thus, in order to avoid such risks and conflicts, the Central Authorities will have to play a
very important role to secure the conditions and timing of the visits through permanent and effective
supervision over the minors. 21
According to sources from the Argentine Central Authority, Dr. Ignacio Goicoechea, to date, all
Argentine courts have waited for the court deciding on the issue of the custody of the child to establish
the visitation schedule provided for under Article 21 of the Convention. However, in many cases a
voluntary agreement between the parties was reached during the return proceedings.
The Argentine Civil Code22 establishes that in some cases, express consent of both parents will
be required in order for the minor to carry out certain actions.
This provision refers to parents legally married and living together with the child, as well as
parents that are separated or divorced, especially when one of the parents has physical custody of the
minor, and the other has only visitation rights.
Authorization to leave the country is included among the actions for which express consent is
required by both parents. This means that either the father or the mother may grant or deny this
authorization, or grant it for a limited period of time, and therefore express his agreement or disagreement
regarding a possible change of residence of the minor.
When a parent wishes to relocate with the child in a foreign country, he will need to acquire the
court ' s authorization when a legal custody arrangement has been settled. This is also the case when a
parent has only physical custody of the minor, since according to article 264 of the Argentine Civil Code,
consent of both parents is required in order to leave the country. Of course, the problem arises when a
parent is denied the relocation by the courts, and he decides to abduct the child.
III. Court System and Structure – Courts Handling the Hague Convention
When Argentina is the requested country and there is no voluntary return of the child, the
competent court for return proceedings under the Convention will be either the civil ordinary courts in the
Federal Capital and national territories or the provincial courts, which may be family courts in those
provinces that have such, or the civil courts. The case may be appealed to the respective Court of Appeals
LAW LIBRARY OF CONGRESS – 19
23 Wilmer, E. M. c/ Oswald, M. G., LA LEY, 1996- A, 260, Supreme Court, June 14- 1995.
24 C1 CC San Isidro, Sala 1, Aug. 31, 2000, M., V. c/ G. B., M. s/ Restitución de menor y tenencia y régimen de visitas in Revista
El Derecho, Jurisprudencia General, Vol. 191, Buenos Aires 2001.
25 I. M. Weinberg de Roca, LA APLICACIÓN DE LA CONVENCIÓN DE LA HAYA SOBRE RESTITUCIÓN DE MENORES SIN INTERVENCIÓN
DE AUTORIDAD EXTRANJERA REQUIRENTE, in Id. at 115- 116.
26 Id. at 121.
27 Soraya Nadia Hidalgo, Restitución Internacional de Menores en la República Argentina, 1996- C REVISTA JURÍDICA ARGENTINA
LA LEY 1393 ( Buenos Aires, 1996).
and, if admissible, to the Supreme Court. So far, there has been only one case that has reached the
Supreme Court. 23 In this case, the Supreme Court finally ordered the return of the child who was illegally
taken from Canada to Argentina by her mother. The child went back to Canada after an extremely
protracted process ( over a year), compared to the Convention’s standard ( not more than 6 weeks).
In 2000, the Argentine courts decided a very interesting case, 24 applying the Convention, without
the intervention of the foreign Central Authority. The case involves a German man who married an
Argentine woman in Denmark. They had a daughter who was born in Argentina. When the girl turned
4 months old, the family moved to live in Germany. After 2 years, the couple separated and the mother
was granted the child’s full custody by a German lower court. Later, the mother and child traveled to
Argentina, and from there, the mother notified to the German court she and her daughter were going to
establish their permanent residence in Argentina. The German Court of Appeals revoked the lower court
decision granting the child’s custody to the mother, but at the same time did not grant it to the father. The
German Court of Appeals maintained that it lacked international jurisdiction on this child’s custody issue,
because her permanent residence was in Argentina. This occurred, because of the legitimate right of the
mother, who had exclusive custody of the child, and therefore, had the right to determine the permanent
residence of the child. 25
In view of the German court’s decision, the father requested the return of his daughter to Germany
before the lower courts in Argentina, who granted the petition under the provisions of the Hague
Convention. The mother appealed the decision, and the Argentine Court of Appeals reversed the lower
court decision, on the basis that the Hague Convention was not applicable in the case, because the child
in question was not illegally or wrongfully moved from Germany. The mother had the exclusive custody
of the child, which included the right to establish their permanent residence. The final decision on the
case, rejecting the return of the child to Germany, was consistent with the aim of the Hague Convention,
which is mainly to prevent that, through illegal means, the child is taken away from the competent courts
to decide the custody of the child. However, in this case, it was the same German court that decided its
lack of jurisdiction, pointing out that the case should be decided by Argentine courts. 26
IV. Law Enforcement System
Both the Central Authority and the courts have requested assistance from the police and Interpol
to locate children and secure the enforcement of authorities’ orders. 27 In Argentina children are sought
by Interpol, not only in the cases derived from International Conventions, but also in those originated in
countries where no conventions exist.
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28 Law 25746 of July 1, 2003 in B. O. July 2, 2003 regulated by Decree 1005/ 2003 of Oct. 30, 2003 in B. O. Oct. 31, 2003.
29 Id. arts. 1 and 2.
According to the Argentine Central Authority, since January 2000 to the present, the request
statistics are as follows:
Return requests ( outgoing) Return requests ( incoming)
Pending: 78 Pending: 19
Closed: 92 Closed: 32
TOTAL: 170 TOTAL: 51
Visitation requests ( outgoing) Visitation requests ( incoming)
Pending: 13 Pending: 3
Closed: 16 Closed: 7
TOTAL: 29 TOTAL: 10
On June 11, 2003,28 the National Registry of Information about Missing Minors was created under
the National Program for the Prevention of the Abduction and Trafficking of Minors and Crimes Against
their Identity, created by Resolution 284/ 02, within the Ministry of Justice, Security, and Human Rights.
The Registry will establish a database that will collect all information related to cases of children that have
been abducted or missing. The database will be available on Internet and will include all information
needed to locate them and also to check on the status of the search. 29
Both parents are required under the law to authorize, not only the minor’s travel abroad, but also
the issuance of a passport to a minor. The withdrawal of such a passport, as well as the denial or
restrictions on the issuance of visas, may only be ordered by a court. Therefore, in order for a minor,
who is not traveling with both parents, to leave the country, he will have to present his valid passport, as
well as the absent parent’s authorization to travel, before the border authorities. Administrative measures
and court orders may become ineffective if border controls in the country are not duly carried out. This
is the case for dry/ land boundaries due to the length of the Argentine borders. However, border controls
are highly effective with regard to air carriers and ferries.
When a court orders a prohibition to leave the country, such an order is given to border
authorities, including Federal Police, Immigration, Interpol- Argentina, and Aeronautic Police.
V. Legal Assistance Programs
Legal Assistance Programs are not available. A private attorney must be hired if a voluntary
return fails, and judicial proceedings need to be started. However, a public defender may be available
if the claimant can prove that he cannot afford a private attorney.
LAW LIBRARY OF CONGRESS – 21
30 http:// www. menores. gov. ar.
31 http:// ar. missingkids. com.
32 Id.
33 http:// www. pibe. org. ar. See also, Fundación Niños Unidos para el Mundo, http:// www. foundchild. org. ar.
VI. Conclusion
The Ministry of Foreign Affairs has a website30 to provide information on those conventions
referred to child protection from different viewpoints or scopes. It is addressed to those who, on account
of their duties, must enforce some of those mentioned international conventions. It is also addressed to
those who are included in some of the situations covered by the conventions and need to know whom to
address the application in order to prevent unnecessary delays. The website intends to disseminate the
rights derived from the Convention on the Rights of the Child and point out some helpful hints for their
protection.
However, due to the lack of human and financial resources, the government has not been able to
provide more comprehensive information to prevent abductions. The role of non- governmental
organizations ( NGOs) has been very important in this regard, because they fill a gap that cannot be filled
by governments.
NGOs, such as the Argentine chapter of Missing Children, 31 have webpages on the Internet to
provide assistance to parents whose children are missing. The webpage provides a comprehensive
multilingual database which includes pictures of the missing children, as well as a progressive age picture,
showing how a child could have aged through the years, based on the latest available picture. It also
provides their identification and physical description. 32 There are other local NGOs, such as Fundacion
PIBE, based in the Province of Tucuman, which also provides information and support to parents of
missing children through their webpage. 33
The application of the Convention in Argentina appears to be successful, particularly in expediting
the return of minors. The Convention is an example of the humanization of private international law, with
its most important goal being the well- being of the child. Of all the cases to which the Convention was
applied, the one reaching the Supreme Court in 1995 has had extensive media coverage. This promotion
of the Convention raised public awareness, and Argentineans became more conscious about the serious
issues involved in international parental child abduction.
Prepared by Graciela I. Rodriguez- Ferrand
Senior Legal Specialist
November 2003
LAW LIBRARY OF CONGRESS – 22
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1 Australian Treaty Series 1987, No. 2.
2 Jennifer Degeling and Nan Levett, INTERNATIONAL CHILD ABDUCTION: A GUIDE FOR PARENTS AND PRACTITIONERS, Commonwealth
of Australia, Attorney- General’s Department ( November 2001) at 16, available at http:// www. law. gov. au/ childabduction/.
3 Krista M. Bowie, INTERNATIONAL APPLICATION AND INTERPRETATION OF THE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL
CHILD ABDUCTION ( March 2001), available at http:// www. familycourt. gov. au/ papers/ html/ bowie. html.
2004- 92
THE LAW LIBRARY OF CONGRESS
AUSTRALIA
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
The Commonwealth of Australia is a federation of the six states of New South Wales, Queensland,
Victoria, South Australia, Tasmania and Western Australia, and the Australian Capital Territory and
Northern Territory. It has a common law based system of law. The Constitution of Australia adopts the
enumerated powers doctrine, under which the federal Parliament may make laws “ for the peace, order,
and good government of the Commonwealth,” while the undefined residue of powers is left to the states.
Commonwealth laws are guaranteed to prevail over inconsistent state laws, but there is nothing to stop
a state from legislating on the subject of a power granted to the Commonwealth. In section 51( xxi) and
( xxii) of the Constitution, the federal Parliament is granted legislative power over marriage, divorce,
parental rights, and the custody and guardianship of infants.
The exercise of the federal power over family matters is represented by the enactment of a
Commonwealth statute, the Family Law Act 1975 ( FLA), as amended. The FLA set up a federal Family
Court, a superior court of record with jurisdiction in family laws, including issues relating to children.
Many constitutional challenges were mounted against the FLA, most of which have now been resolved,
but the State of Western Australia continues to apply its own laws.
It is in pursuance of the powers contained in the FLA that Australia ratified the 1980 Hague
Convention on the Civil Aspects of International Child Abduction, and it came into force in 1987.1 A
November 2001 Commonwealth Attorney- General’s Department Guide for Parents and Practitioners on
International Child Abduction gave a total of 173 applications under the Convention for orders for return
or access, reflecting 76 abductions to Australia and 97 from Australia. 2 The number in relation to
countries not covered by the Convention may be much higher. The number of abductions was believed
to be increasing. A 2001 paper explained the increase as a consequence of the growing number of bi-national
or multi- cultural marriages. The offspring of such marriages often have dual nationality and can
easily enter the country of the abducting parent. 3
I. Domestic Laws and Regulations Implementing the Hague Convention
The Family Law ( Child Abduction Convention) Regulations ( Child Abduction Regulations) issued
pursuant to the powers contained in the FLA 1975, section 111B give effect to the Convention. The
LAW LIBRARY OF CONGRESS – 24
4 McCall and McCall; State Central Authority ( Applicant); Attorney- General ( Commonwealth) ( Intervener), ( 1995) FLC ¶ 92- 551 at
pp. 81,507, 81,509, and 81,517. The Family Law ( Child Abduction Convention) Regulations 1998 are available on the Commonwealth
Attorney- General’s Department online database SCALEPLUS, at http:// scaleplus. law. gov. au/. They were most recently amended on June 5,
2002.
5 Anthony Dicky, CHILD ABDUCTION IN FAMILY LAW ( CCH, 1999).
6 17 Laws of Australia, FAMILY LAW, ¶ 17.8[ 23]-[ 25].
7 Anne- Marie Hutchinson, Rachel Roberts and Henry Speight, INTERNATIONAL PARENTAL CHILD ABDUCTION 67 ( 1998).
8 Family Law and Legal Assistance Division, at http:// law. gov. au/ www/ familylawHome. nsf/.
9 For fuller details of the information to be included in the affidavits in support of the application, see the United States Department
of State, at http:// travel. state. gov/ abduction_ australia. html.
Convention by itself is not part of Australian law, and only the Child Abduction Regulations are so
accorded. 4 Accordingly, the provisions of the Convention cannot override the terms of the Regulations. 5
The Hague Convention applies to any child under the age of 16 years who was habitually resident
in a contracting state immediately prior to the removal or retention. The term “ habitually resident” is not
defined in the Convention, but under Australian case law it is to be understood according to the ordinary
and natural meaning of the two words; its determination is a question of fact and is often based on the
conduct of the parties. 6 The Australian Family Court is stated to favor a slightly wider interpretation of
the Convention than courts in England, and changing a child’s residence requires proof that both parents
had a shared intention to remain in a new country. 7
Under the Child Abduction Regulations, when a child has been removed from a Convention
country to Australia, or retained in Australia, an application must be sent to the Commonwealth Central
Authority which must be satisfied that it is in accordance with the Convention ( Regulation 12). The
Commonwealth Attorney- General’s Department is the Australian Central Authority. Issues involving the
Hague Convention are dealt with by that Department’s International Civil Procedures Unit, a part of the
Family Law Branch. 8 The Commonwealth Central Authority may seek an amicable resolution of the
differences between the applicant and the person opposing the return of the child or the voluntary return
of the child. “ Removal” and “ retention” of a child are defined as being in breach of the rights of custody
of a person or institution if at the time of removal those rights were actually exercised or would have been
so exercised except for the removal ( Regulation 3).
The information required to be included in the application should be in the form of an affidavit
stating that the child was habitually resident in the requesting country at the time of the wrongful removal
or retention. The affidavit should include information on the child’s place of residence, the person with
whom the child lived, any period spent outside the country, the name of the school and the time spent
there, the child’s grade, etc. The right of custody over the child should also be described based on the law
of the state or country of habitual residence. The affidavit must also explain the incidents and
circumstances surrounding the removal of the child in order to provide a proper understanding of the
situation. A copy of any court order granted prior to the removal must be included, and a copy of the
applicable statute on custody must also be supplied. Evidence that the applicant was actually exercising
the right of custody over the child should be provided in the form of an affidavit from the applicant’s
lawyer stating how those rights were being exercised. 9
LAW LIBRARY OF CONGRESS – 25
10 Hutchinson, supra note 7, at 66.
11 Id. at 67.
12 Family Law Act 1975, § 68L.
13 Supra note 6, ¶ 17.8[ 29].
Once accepted by the Commonwealth Central Authority, the application will be forwarded to the
relevant Central Authority in the country where the child is located. If a child’s exact location is not
known, a warrant may be issued by a court for the possession of the child. The Central Authority will
also assess whether it is appropriate to negotiate a voluntary return and may make initial contact with the
abducting party. 10 If the negotiations fail or negotiations are considered inappropriate, the case will be
forwarded to the Crown Solicitor ( state attorney) who will file an application with the Family Court.
Direct contact between the applicant and the Crown Solicitor is discouraged, and communications are
normally handled by the Central Authority. The application must be listed for a preliminary hearing
before the Family Court within 7 days, at which time a date will be set for the defending party to file a
response and for a full hearing. The hearing is before a single family specialist judge, and the judgment
is usually formulated on the basis of the documentary evidence, together with any affidavits deemed
necessary. The court may require a family and child counselor or welfare officer to report on such
matters that are relevant to the proceedings, and the reports may include any other matters that relate to
the welfare of the child ( Regulation 26). Oral evidence may be called in cases in which there is a wide
discrepancy in the evidence. The Court will take into account the wishes of a child who has sufficient
maturity to understand the proceedings. 11 A child of an appropriate age and degree of maturity should
be separately represented, and the court should make an order for the presence of such a representative. 12
The Court, if satisfied that it is desirable to do so, may make an order for the return of the child
to the country in which he habitually resided immediately before the removal or retention, or make any
other order it considers to be appropriate to give effect to the Convention ( Regulation 15). It must make
an order for the return of the child if the application was filed less than one year after the day on which
the child was removed to, or first retained in, Australia ( Regulation 16( 1)). The Court may refuse the
return of the child if the person opposing the return establishes that the following prescribed exceptions
to the return apply:
( a) the applicant was not actually exercising rights of custody when the child was first removed
to, or retained in, Australia and those rights would not have been exercised if the child had not
been so removed or retained; or
( b) return would expose the child to physical or psychological harm or otherwise place the child
in an intolerable situation; or
( c) the child objects to being returned and has attained an age and degree of maturity at which it
is appropriate to take his views into account; or
( d) return would not be permitted by the fundamental principles of Australia relating to the
protection of human rights and fundamental freedoms ( Regulation 16).
If a period in excess of 1 year has elapsed prior to an application being made for the return of a
child, the Court is required ( subject to the above prescribed exceptions) to make an order for the return
of the child immediately, unless it can be proved that the child is now settled in his new environment
( Regulation 16( 2)). 13
LAW LIBRARY OF CONGRESS – 26
14 Hutchinson, supra note 7, at 67.
15 For citations to Australian case law on this and the following points of interpretation of the Convention, see supra note 6, ¶ 17.8[ 14].
16 Hague Conference on Private International Law, CONVENTION AND RECOMMENDATIONS ADOPTED BY THE 14TH SESSION AND
EXPLANATORY REPORT BY ELISA PEREZ- VERA ( The Hague, 1982).
17 Migration Amendment Regulations 2000 ( no. 2) 2000 No. 62, amending the Migration Regulations 1994 ¶ 4015- 4018,
http:// scaleplus. law. gov. au/ html/ Commonwealth of Australia, Attorney- General’s Department, AUSTRALIA’S COMBINED SECOND AND THIRD
REPORTS UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD, Part V, Section H “ Illicit Transfer and Non- return ( art. 11),” available at
http:// www. law. gov. au/.
The Court must refuse to make an order to return the child if it is satisfied that:
a) the removal or retention of the child was not within the meaning of the Child Abduction
Regulations; or
( b) the child was not a habitual resident of a Convention country immediately before removal or
retention; or
( c) the child had reached the age of 16; or
( d) the child was removed to, or retained in, Australia from a country which at that time was not
a Convention country; or
( e) the child is not in Australia.
The burden for “ substantiating settlement lies with the defending parent who must demonstrate
that the child is both physically established in a new location and is emotionally settled and secure.” 14 The
rationale of the Hague Convention is considered as being clear in that the object is the expeditious return
of the child, and therefore the function of the Court should not be hampered by interpretations which
interfere with the administration of the Convention. 15 Similarly, terms in the Convention should be given
their literal meaning, and its expressions should be understood according to their ordinary and natural
meaning and should not be treated as terms of art with special meaning. The Family Court of Australia
has had recourse to the explanatory report of the drafters and negotiators of the Hague Convention. 16
On an order of return being made by the court, the responsible Central Authority must make the
necessary arrangements for the return of the child to the country of habitual residence. Unless the court
order is stayed within 7 days of its making, the child must be returned to the country of habitual
residence.
The Child Abduction Regulations also make provisions granting rights of access to a child in
Australia ( Regulation 24). The Hague Convention, article 21, calls on Central Authorities to promote the
peaceful enjoyment of access rights, and the Child Abduction Regulations require the Commonwealth
Central Authority to take such steps as are necessary for the purpose of enabling the performance of the
obligations under the Article.
On July 1, 2000 the Migration Regulations were amended to ensure that a visa for migration to
Australia would not be granted to a child without the permission of everyone with a right to decide where
the child can live. If there is a dispute between parents over the removal of a child to Australia, the
migrating parent is required to demonstrate their legal right to decide where the child may live. 17
LAW LIBRARY OF CONGRESS – 27
18 Supra note 12, § 65Y( 1) & 65Z( 1).
19 Id. § 67Q.
20 In Western Australia unmarried mothers alone continue to exercise parental responsibility and residence rights over the child.
21 Family Law Reform Act 1995, § 111B( 4).
II. Domestic Laws Regarding Child Abduction and Parental Visitation
A. Child Abduction
The FLA, section 65Y, makes provisions against the removal of a child who was the subject of
a custody order from the person who had care and control of the child. The penalty for the offense is
imprisonment for up to 3 years. In 1983, amendments were enacted creating a further offense to remove
a child from Australia during pending proceedings or in contravention of a court order. 18 For children
abducted from overseas into Australia, the FLA provides authority for the issuance by a court of a
“ location order” and a “ recovery order.” A location order calls for any person to obtain and provide
to the Registrar of the court information on where a child is to be found. Once located, a recovery order
authorizes the return of the child to the person seeking his recovery without exposing the abductor to any
violence. The Act grants various enforcement powers to search premises, places, vehicles, aircraft and
to arrest, remove, or take possession of the child. 19
According to the Family Law Council, the provisions of the Family Law Act have not proven
effective in preventing children from being unlawfully removed from or retained outside Australia. First,
the offense is limited to cases in which court orders are in force or proceedings are pending. Secondly,
the provision has no application to the common situation in which a parent takes a child abroad with the
consent of the other parent and then retains the child. In a majority of cases of domestic abductions, the
parent from whom the child is taken has no court order, and the abducting parent has not committed a
criminal offense.
Under state laws, criminal provisions exist, including child stealing and abducting a child under
the age of 16 years. These provisions were not specifically designed to cover parental child abduction,
although there are some provisions which may be applicable in cases of such abductions.
The ( Commonwealth) Criminal Code Act 1995, Division 27, section 27.2, contains provisions
relating to kidnapping, child abduction, and unlawful detention. Under it kidnapping is extended to cover
the situation in which a person takes or detains another person without consent with the intention of taking
the person out of the jurisdiction. A person who takes or detains a child is deemed to be acting without
the child’s consent. If the person removing the child is that child’s lawful custodian or acts with the
consent of the custodian, it is a defense.
A note is made of the change in terminology in Australia regarding custody and access. In 1996,
these were replaced by a system of shared parenting based on parental responsibility. The joint
responsibility is applicable whether or not the parents are married. 20 Reference is now made to a child’s
“ residence,” that is, with whom the child lives, and the “ contact” that the child has with certain persons.
The change, however, does not affect the use of the terms “ custody” and “ access” in the Hague
Convention, as the statute specifically provides that the terminology of the Convention continues to apply
to Australian parents. 21
LAW LIBRARY OF CONGRESS – 28
22 Family Law Act 1995, § 61B.
23 Id. § 61C( 2).
24 Id. § 63B.
25 Supra note 6, ¶ 17.8[ 44].
With regard to the effect of the change of terminology on abductions when both parents are
responsible for the child, the removal of a child by one parent prevents the other parent from exercising
his responsibilities. This amounts to a parental abduction arising from the taking over of all
responsibilities for a child’s care without regard for the other parent who shares those responsibilities.
B. Parental Visitation
The concept of parental responsibility introduced by the 1995 Act is defined to include “ all the
duties, powers, responsibilities, and authority which, by law, parents have in relation to children.” 22 Each
of the parents of a child who is not 18 has parental responsibility for the child, and any change in the
nature of the relationship of the parents does not result in a change in the responsibility. “ It is not affected,
for example, by the parents becoming separated or by either of them marrying or re- marrying. ” 23 Thus,
the parents generally retain the same responsibilities they exercised over the children before the breakup
of their marriage. This is the situation irrespective of whether the child resides with one parent and the
other has contact with the child.
The 1995 Act encourages the parents of a child to agree about matters concerning the child, giving
the best interests of the child paramount consideration, rather than seeking an order from a court. A
“ parenting plan” may be drawn up dealing with various matters, including the person with whom the child
is to live; contact between the child and another person; maintenance of the child; and any other aspect
of parenting responsibility. The plan may be registered in a court, and if so done, the court may vary the
child welfare provisions in the best interests of the child. 24
The Hague Convention also requires that rights of access granted in the laws of members states
be respected. The Child Abduction Regulations ( Regulation 24) vest upon the Central Authority the duty
to promote the enjoyment of those rights, a duty which is administrative and non- mandatory in nature.
The Central Authority may thus initiate or instruct legal representatives to seek an access order.
Moreover, while the Convention does not place an absolute obligation on the Court, it may consider the
best interests of the child in determining whether an access order should be made. If a foreign access
order is in existence, it is given the “ greatest weight” and would be overridden only by the paramount
consideration of the welfare of the child. 25
III. Court System and Structure – Courts Handling the Hague Convention
The federal Family Court deals with all legal matters which follow from family breakups and
divorce, the custody and welfare of children, access arrangements and property disputes. In Western
Australia, a separate Family Court of Western Australia exists to exercise federal and non- federal
jurisdiction in family law and adoption matters. Under a system of cross- vesting of jurisdiction between
federal, state and territory courts, the Family Court of Australia is vested with the full jurisdiction of the
LAW LIBRARY OF CONGRESS – 29
26 Jurisdiction of Courts ( Cross- Vesting) Act 1987. In 1999, the Australian High Court invalidated parts of the cross- vesting
arrangements in Re. Wakim, [ 1999] HCA 27 ( 17 June 1999). The Jurisdiction of Courts Legislation Amendment Act 2000, No. 57, and the
Jurisdiction of Courts ( Miscellaneous Amendments) Act 2000, No. 161 were passed to address some of the objections of the Court.
27 Family Court of Australia, at http:// www. familycourt. gov. au/ missing/ html/ abduction. html.
28 ( 1997) FLC, ¶ 92- 733, at pp. 83,883- 83,884.
29 ( 1997) FLC, ¶ 92- 746 at pp. 84,072, and 84,074.
30 As stated by the Family Court in England in Re. F [ 1995] 2 Fam LR 31, 41.
31 Dickey, supra note 5, ¶ 211.
32 Re S ( A Minor), [ 1993] Fam 242, 250.
state and territory Supreme Courts. 26 Cross- vesting reduces uncertainties as to the jurisdictional limit of
the courts and ensures that proceedings which ought to be tried together are tried in one court. The
website of the Family Court of Australia contains a section on child abduction, with links to papers and
reports, as well as judgments by the Family Court and the High Court. 27
An appeal may be brought as a matter of right to the Appeals division of the Family Court of
Australia sitting with three judges, and a further appeal may be made to the High Court of Australia, if
the Appeals division or the High Court certifies that a question of law has arisen.
The nature of the litigation arising in administering the Hague Convention is considered to be in
a class by itself and is described as being neither adversarial nor inquisitorial. As in other family matters,
applications under the Convention are processed expeditiously. Hearings are held in open court, but the
names of the persons involved in the proceedings must not be disclosed by the media, the sanction against
which is a criminal penalty.
The Child Abduction Regulations ( Regulation 2( 1)) confer jurisdiction of child abduction cases
on any court which exercises jurisdiction under the Family Law Act. This includes a court of summary
proceedings.
In the majority of cases, the Central Authority makes an application for an order for the return
of a child, as the Regulations grant them primary responsibility for instituting proceedings. However, the
Full Court of the Family Court expressed the view in Panayotides v Panayotides28 that such proceedings
can be properly brought by any person, institution, or other parties whose rights of custody have been
breached by the removal or retention.
In State Central Authority v. Ayob, 29 the Court ruled against a literal interpretation of the Child
Abduction Regulations because of the clear import of provisions in the Convention. It is accepted in
Australia that the Convention is to be interpreted broadly, without attributing to it any specialist meaning
which it may have acquired under domestic law. 30 Thus, important expressions in the Convention on
“ rights of custody” and “ habitually resident” have been interpreted more broadly than under Australian
domestic law. 31
The reason for the prompt return of the child is to ensure that the courts in the home country
determine who should have parental responsibility, and as such, where the child should live. 32 It is
LAW LIBRARY OF CONGRESS – 30
33 Dickey, supra note 5, ¶ 202.
assumed that the issues are best determined by the courts of the country in which the child has the most
obvious and substantial connection. 33
IV. Law Enforcement System
The procedure of the Hague Convention is designed to enable a court or administrative authority
to immediately return the child to its country of habitual residence.
In granting an order for the return of a child, a court may grant to the Commonwealth or State
Central Authorities:
• a warrant for the apprehension or detention of the child, including the right to stop and
search a vehicle, vessel, or aircraft, or to enter and search such premises;
• an order that the child not be removed from a specified place;
• an order that the child be placed with an appropriate person or institution pending the
determination of the application for return.
The procedure is designed to enable the authorities to return the child to the person seeking the
child’s recovery without exposing the abductor to possible violence.
However, it is acknowledged that as parental abduction remains solely a civil matter, it does not
obtain a priority of police resources, nor are detection procedures, such as telephone interception and the
use of listening devices, made available.
V. Legal Assistance Programs
Applications made in Australia under the Hague Convention are automatically funded by the
Government and no means test is applicable. The Hague Convention, article 26, paragraph 3, allows a
contracting state to make a reservation that it will not be bound to meet certain costs of recovery of a
child. Australia has not made such a reservation, while a significant number of countries have done so.
The Australian Central Authority does require foreign applicants to deposit sufficient funds with
their legal representatives to cover the costs of the air fares, prior to processing an application through the
courts. There is an Overseas Custody ( Child Removal) Scheme to compensate Australian applicants who
do not have the financial means for air travel.
Under the Child Abduction Regulations ( Regulation 30), the Court can order the abducting parent
to pay the expenses of the applicant, including necessary traveling expenses, costs incurred in locating the
child, legal representation costs, and other costs incurred for the return of the child. However, in family
matters each party bears its own expenses and order for the payment of costs are rarely made.
The parties to a Hague Convention application may engage legal representatives at their own
expense and apply for legal aid ( assistance). Legal aid is available in all of Australia, subject to means
and merits tests. Each state and territory adopts its own eligibility criteria.
LAW LIBRARY OF CONGRESS – 31
34 Supra note 6, § 17. 8 [ 14].
35 Supra note 2, at 15.
36 Hague Conference on Private International Law, Convention No. 34, at http:// www. hcch. net/ e/ conventions/ menu34e. html.
37 Commonwealth Numbered Acts 1973 and database, at http:// scaleplus. law. gov. au/.
VI. Conclusion
Given the objective of the Hague Convention to expeditiously return children taken from one
country to another, the Family Court of Australia has interpreted the Convention in a manner which
accords with its spirit. As required under the Vienna Convention on the Law of Treaties, the Court has
followed the primary rule of interpreting the Hague Convention in good faith in accordance with the
ordinary meaning to be given to its words. It has also made use of the Explanatory Report to the
Convention to confirm the meaning arrived at or to remove an ambiguity or overcome a manifestly absurd
or unreasonable result. 34
The number of cases of parental abduction has increased since the Hague Convention came into
force in Australia in 1988. One explanation for the increase may be the significant increase in the number
of countries that have ratified the Convention and the resulting greater awareness of the problem. The
Attorney- General’s Department, however, notes that the increase has mainly been in relation to the United
Kingdom, the United States and New Zealand. 35
The statutory Family Law Council after investigating several issues relating to child abductions
referred to it by the Attorney- General, has made several recommendations, including that:
• steps be undertaken to improve the data collected on child abductions
• parental child abduction, whether internally or from other countries, should not be
criminalized and alternative means should be adopted for improving the recovery rate of
abducted children
• the courts be given broad discretionary powers to recover the costs associated with the
recovery of children abducted from abroad from the person responsible for the abduction.
To improve the operation of the Hague Convention, Australia has signed the additional Hague
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co- operation in respect of
Parental Responsibility and Measures for the Protection of Children 1996.36 This Convention is intended
to eliminate competition or dissonance between the authorities of different states with regard to orders for
the protection of children. It requires that contracting states accept limitations on the jurisdiction of their
authorities in order to avoid conflicts in matters of jurisdiction and applicable law. To implement the
Convention, Australia’s Commonwealth Parliament passed the Family Law Amendment ( Child Protection
Convention) Act 2002, which received royal assent on September 3, 2002.37 Full implementation of the
Act required amendments to state and territory legislation, and it did not go into force until August 1,
2003. Apart from conflicts of jurisdiction, the Act also guarantees the mutual recognition and
enforcement of parental responsibility orders by Convention countries. A benefit for Australia is the 1996
Convention’s use of the term “ parental responsibility.” Australian parents had sometimes been
LAW LIBRARY OF CONGRESS – 32
38 International Child Abduction News, Nos. 24 and 25 ( June- Sep. 2002), at http:// www. law. gov. au/ childabduction/.
3 9 Australian Embassy - Beirut, AUSTRALIA AND LEBANON: 2002 - THE YEAR IN REVIEW,
http:// www. lebanon. embassy. gov. au/ bilateral/ 2002. html.
40 AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE ARAB REPUBLIC OF EGYPT REGARDING
COOPERATION ON PROTECTING THE WELFARE OF CHILDREN ( Cairo, Oct. 22, 2000) Australian Treaty Series [ 2002] ATS 3, at
http:// www. austlii. edu. au/.
disadvantaged when other Convention countries refused to recognize that parental responsibility gave
Australian parents the essential “ right of custody” under the 1980 Convention. 38
In countries that are not signatories to the Convention, Australian Embassies endeavor to provide
what assistance they can to Australians whose children have been taken to those countries. In some
countries, such as Lebanon, which have contributed many immigrants to Australia, the Australian
Embassy has tried to develop ties with the local courts, in order to facilitate cooperation in child custody
matters. The Embassy in Beirut reported that in October 2002, a large delegation of Lebanese lawyers
attended a conference in Sydney and were able to meet Australian judges and gain insight into the
operation of the Family Court of Australia. 39
In October 2000, Australia and Egypt signed an Agreement on cooperation in protecting the
welfare of children. This entered into force on February 1, 2002. The Agreement, intended to establish
formal procedures to assist Australians whose children have been abducted to Egypt, establishes a Joint
Consultative Commission which will assist in encouraging dialogue between parents and facilitate the
return of children. 40
Prepared by Kersi B. Shroff
Chief, Western Law Division
With the assistance of Dr. Donald R. DeGlopper
Senior Legal Research Analyst
March 2004
1 The Hague, Oct. 25, 1980 T. I. A. S. 11670.
2 Promulgated Sept. 14, 1988, BUNDESGESETZBLATT [ BGBl, official law gazette for Austria] no. 1988/ 512.
3 BUNDESGESETZBLATT [ official law gazette of Germany] 1991 II at 336.
4 A German newspaper article suggested that Austria was almost as reluctant as Germany to return abducted children [ C. Brinke, Im
Zweifel für den Kidnapper, SÜDDEUTSCHE ZEITUNG 12 ( Oct. 21, 1999)].
5 The U. S. Department of State’s assessment of non- compliance [ U. S. Department of State, Report on Compliance with the Hague
Convention on the Civil Aspects of International Child Abduction ( Jun. 2003) http:// travel. state. gov/ 2003haguereport. html ( last accessed Jan.
3, 2004)] was based on one case in which the Austrian Courts refused to return a child after ordering its return on the grounds that
circumstances had changed between the decision and its enforcement [ Oberster Gerichtshof ( OGH) decision, Oct. 15, 1996, docket no. 4 Ob
2288/ 96 s., 38 ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG, INTERNATIONALS PRIVATRECHT UND EUROPARECHT ( ZfRV) 33 ( 1997)].
Various diplomatic and administrative attempts were made yet these did not resolve this impasse The Austrian Ministry of Justice
tried to get the parties to agree to more generous visitation rights, yet these efforts failed. The Austrian press expressed surprise at the intensity
of U. S. diplomatic and administrative efforts which was viewed as an attempt to influence the Austrian courts [ Kindesentführung: US- Tadel an
Österreich, Die Presse ( Jul. 11, 2000) http:// www. diepresse. at ( last accessed Jan. 3, 2004)]. The position of the United States was vindicated
by the judgment of the European Court for Human Rights [ infra note 6]. Various aspects of the case are discussed throughout this report.
6 European Court of Human Rights, Apr. 24, 2003, Sylvester v. Austria, 2003 Eur. Ct. H. R. 36812/ 97 .
7 Bundesgesetz zur Durchführung des Übereinkommens vom 25. Oktober 1980 über die zivilrechtlichen Aspekte internationaler
Kindesentführung HKÜG] , June 9, 1988, BGBl. no. 1988/ 513.
8 Requests are to be directed to the Federal Minister at the following address:
Der Bundesminister für Justiz
A 1070 Wien
Museumstrasse 7
AUSTRIA
2004- 92
LAW LIBRARY OF CONGRESS
AUSTRIA
HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
Austria ratified the Hague Convention on the Civil Aspects of International Child Abduction1
[ hereinafter the Hague Convention] in September 1988,2 and it became effective for Austria on October
1, 1988.3 Austria made no reservations to the Convention and the implementing legislation provides
effective and generous mechanisms for processing Hague Convention requests. Nevertheless, it has been
alleged that refusals to return children to foreign countries frequently occur in Austria, 4 and in 2001, 2002,
and 2003, the U. S. Department of State listed Austria as a non- complying country5 on the basis of one
case that in 2003, caused the European Human Rights Court to issue a judgment against Austria. 6
I. Domestic Laws and Regulations Implementing the Hague Convention
A. Statutory Law – Implementation in General
The Austrian Implementing Act for the Hague Convention [ hereinafter the Implementing Act] 7
became effective on October 1, 1988, together with the Convention. The Implementing Act designates
the Austrian Federal Ministry of Justice [ hereinafter the Ministry] as the Central Authority8 within the
LAW LIBRARY OF CONGRESS – 34
9 Ausserstreit- Begleitsgesetz [ Companion Act to the Non- Contentious Proceedings Act]. Dec. 31, 2003, BGBl I no. 2003/ 112, art.
24, amending [ HKÜG § 5, effective date Jan 5, 2005.
10 The reported cases involve claiming parents from other European countries, and from Canada and New Zealand. The only reported
case involving an abduction from the United States appears to be the Sylvester case, supra notes 5 and 6.
11 OGH decision, Oct. 25, 2002, 44 ZfRV 98 ( 2002)
12 OGH decision, Oct. 30, 2003, docket no. 80b121/ 03g; OGH decision, Apr. 15, 1998, docket no. 7 Ob 72/ 98h, ÖSTERREICHISCHE
JURISTEN- ZEITUNG 667 ( 1998).
13 OGH decision, Feb. 12, 1997, docket no. 35/ 97s, 70 ENTSCHEIDUNGEN DES ÖSTERREICHISCHEN GERICHTSHOFES IN ZIVILSACHEN,
no. 27 ( 1998). The Court distinguished the case from its 1992 decision [ OGH, Feb. 5, 1992, docket number 2 Ob 596/ 91, 34 ZfRV 32 ( 1993)]
in which a similar order by English authorities was deemed to indicate joint custody.
meaning of article 6 of the Hague Convention and makes provisions for fitting Hague Convention requests
into the Austrian administration of justice. In December 2003, the Implementing Act was amended by
centralizing venue for Hague Convention proceedings in a smaller number of Districts Courts, so as to
build judicial specialization and allow the judges to decide the cases faster. 9
When a request arrives from abroad, the Ministry must first examine whether the child is located
in another country, in which case the request will be forwarded in accordance with article 9 of the
Convention. If it appears that the child is in Austria, the Ministry is called upon to have the request and
the underlying documents translated into German, if they have been provided in a foreign language. This
is done at the expense of the Austrian Federal Government. The Ministry then forwards the request to
the president of the Austrian District Court [ Bezirksgericht], which has venue over the case, who in turn
assigns the case to the appropriate judge.
Upon receipt of the case, the judge must grant legal aid, including attorney services, to the
requester, irrespective of the latter’s financial circumstances. If the parties cannot be persuaded to settle
on the return of the child, the judge must decide the case expeditiously in a non- contentious proceeding.
In the enforcement of returns or visitation privileges, the judge may involve the youth welfare agencies,
if this is deemed beneficial for the child.
The president of the District Court must keep the Ministry apprized of any steps taken in the
proceeding and written explanations must be given if the proceeding is not terminated within 6 weeks.
The Ministry may also ask the court and requester’s counsel about the status of the proceeding.
B. Implementation by the Courts
In the past 15 years, the Austrian Supreme Court, in its role as the second and final appellate
instance, has ruled on questions of law in a fair number of Hague Convention proceedings. 10 In some of
these cases the Supreme Court upheld return refusals when the abducted child did not have a habitual
abode in the country from where he was taken11 and when the claiming parent did not have custody or had
not exercised custody. 12 In one such case the Supreme Court had upheld a return refusal, because the
mother had been awarded sole custody in Canada, the habitual residence of the child, even though the
Canadian courts had ordered the mother to stay in Canada with the child. 13 These cases appear to indicate
that the Austrian courts will refuse the return of the child, unless all the requirements of the Hague
Convention are met. Moreover, the Austrian interpretation of the purposes of the Convention and of its
LAW LIBRARY OF CONGRESS – 35
14 OGH decision, Feb. 12, 1997, supra note 13.
15 OGH decision, May 29, 2000, docket no. 7 Ob 123/ 001, 42 ZfRV 30 ( 2001).
16 OGH decision, Mar. 28, 2000, 41 ZfRV 186 ( 2000).
17 OGH decision, Oct. 17, 2003, docket no. 1Ob246/ 03p.
18 OGH decision, June 19, 1997, 38[ ZfRV] 249 ( 1997).
19 Supra notes 5 and 6.
20 OGH decision, Jan. 18, 2000, 41 ZfRV 147 ( 2000).
21 M. Schwimann, 1 ABGB PRAXISKOMMENTAR 388 ( Wien, 1997); B. Verschraegen, Das Kind “ Helene,” in F. Matscher et al.,
EUROPA IM AUFBRUCH – FESTSCHRIFT FRITZ SCHWIND 227 ( Wien, 1993).
limits is similar to that of the German courts. In fact, German case law is frequently cited in the Austrian
decisions. 14
A few of the Supreme Court decisions deal with the exception of article 13, subparagraph ( b) that
justifies a refusal when the return of the child would involve the risk of grave harm. In such cases the
Supreme Court has held that one of the purposes of the Hague Convention is to protect the best interest
of the child by not returning him to a dangerous situation. 15 The evaluation of the facts in the individual
cases is left to the courts of lower instance, and their judgments prevail unless errors of law are apparent. 16
According to the Supreme Court, not every inconvenience or separation or minor difficulty, such
as language difficulties or length of separation from the habitual residence amounts to a serious danger. 17
However, the “ grave harm” exception was applicable in a case involving the claiming father’s proven
violence against the mother, as well as his unemployment and history of substance abuse. 18 The exception
was also deemed applicable in the denial of enforcement in the Sylvester case, 19 because of the criminal
prosecution of the taking mother in the state of residence, in conjunction with a custody decision over the
abducted infant that was pronounced in absentia of the taking mother.
On visitation, the Supreme Court has ruled that Austrian domestic law governs the granting of
visitation in Hague Convention requests, and that the Central Authority does not determine the extent of
visitation, but merely serves to facilitate the request of the claiming parent. 20
II. Domestic Laws Regarding Child Abduction and Parental Visitation
A. Best Interest of the Child
An explanation of Austrian domestic law on issues related to child care and custody may help to
provide understanding of the legal environment in which Hague Convention requests are adjudicated in
Austria. In particular, an understanding of the concept of the best interest of the child is essential. This
concept is of overriding importance in all domestic decisions concerning children, 21 and it is possible that
this philosophy may carry over into the adjudication of Hague Convention requests.
LAW LIBRARY OF CONGRESS – 36
22 Allgemeines Bürgerliches Gesetzbuch [ ABGB], June 1, 1811, GESETZE UND VERORDNUNGEN IM JUSTIZFACHE no. 946, as amended.
23 Currently Ausserstreitgesetz [ old AusserStrG], August 9, 1854, REICHSGESETZBLATT [ RGBl] number 1854/ 208, as amended, §
182 ( b), formerly ABGB § 178 ( b); as of January 1, 2005, Ausserstreitgesetz [ new AusserStrG], Dec. 12, 2003, BGBl I no. 111/ 2003], § 105
24 ABGB § § 145- 178 ( a).
25 Kindschaftsrechts- Änderungsgesetz 2001, BGBl I no. 2000/ 135.
26 H. Weitzenböck, Die Schwerpunkte des neuen österreichsichen Kindschaftsrechts, 54 DAS STANDESAMT 289 ( 2001).
27 ABGB, § 177.
28 ABGB, § 178.
29 ABGB, § 176.
The criteria for determining the best interest of the child are expressed in the section 178 ( a) of
the Civil Code, 22 which translates as follows:
In adjudging the welfare of the child, the personality and the needs of the child must be
taken into appropriate consideration, in particular, his or her aptitudes, abilities,
inclinations, and potential for development, as well as the lifestyle of the parents.
To determine what is in the best interest of the child, the court has to hear the child in all
proceedings that involve custody, visitation, and related issues, unless the best interest of the child allows
for no delay in the proceeding or the child is not capable of giving an intelligible response. Questioning
can be delegated to the suitable youth welfare professional under certain circumstances, such as the
questioning of a child younger than age 10.23
B. Child Abduction – Civil Provisions
Austrian civil law appears to have no provisions on domestic child abductions. It appears that if
the court is invoked about a domestic child abduction, the ensuing decision will be a custody decision that
will decide according to the governing Civil Code provisions, 24 and these emphasize the best interest of
the child.
C. Custody
In July 2001, a family law reform25 became effective that brought significant changes to Austrian
custody law. Prior to that reform, joint custody was generally not possible for divorced parents. 26 Since
the reform, joint custody remains in effect when parents get divorced or separate permanently. However,
one of the parents must be designated as the primary caretaker, with whom the child is to reside primarily.
As to all other aspects of child care, the parents may agree on a division of tasks among them, and they
may also agree that only one parent should have custody. 27 The parent who is not the primary caretaker
has extensive rights of visitation, as well as the right to be kept informed and to be consulted. 28
In determining custody, the family courts play a central role. They must review the custody
agreements of the parents and approve of them if they are in the best interest of the child. When a child
is in an unsuitable custody situation, anyone may petition the court to remedy the situation, and a number
of relatives, youth officials, as well as parents and foster parents, may petition for a change in custody. 29
LAW LIBRARY OF CONGRESS – 37
30 Strafgesetzbuch [ Criminal Code], Jan. 23, 1974, BGBl no. 1974/ 60, as amended, § 195.
31 ABGB, § § 148 and 178.
32 ABGB, § 145 ( b).
33 Weitzenböck, supra note 26 at 292.
34 Old AusserStrG, § 185c; new AusserStrG § 111.
35 Weitzenböck, supra note 33.
36 Old AusserStrG, § 19.
37 Weitzenböck, supra note 33. See also infra, note 48 and 49 and accompanying text.
38 Bundes- Verfassungsgesetz, BGBl. no. 1/ 1930, art. 87, as amended.
D. Child abduction – Criminal Provisions
The abduction of a child or a minor from the person who has custody is a criminal offense. It is
punishable with up to 3 years in prison, if the child was younger than age 14, and with up to 1 year in
prison if the minor is between the ages of 14 and 16. In either event, the offense can be prosecuted only
upon request of the person whose custody rights had been breached. 30
E. Visitation
The parent who does not have custody or is not the primary caretaker has rights of visitation, and
the extent of these rights may be determined by the court if the parents cannot agree. 31 Since the 2001
reform of family law, visitation is viewed not only as a right of the parent, but also as also as a right of
the child. The best interest of the child is to be considered in any judicial determinations, and parents
have duties of good conduct, 32 the violation of which may lead to changes in visitation rights or their entire
cancellation. 33
The court may decide that visits must be supervised by an observer, of this appears to be in the
best interest of the child, particularly if the child and the visiting parent have not seen each other for a long
time or if there are reasons to fear that the visiting parent may behave inappropriately. Observed visits
are a novelty in Austrian law, having been introduced through the 2001 Family Law Reform, 34 and
practice on how these cases are to be handled may not as yet have evolved. 35
Difficulties may also arise in the enforcement of visitation rights decisions. Whereas contempt
of court measures have been available in the currently effective version of the Non- Contentious
Proceedings Act, 36 it appears that the courts tread carefully when contemplating coercive measures in
decisions that relate to the welfare of the child. 37
III. Court System and Structure – Courts Handling the Hague Convention
Although Austria is a federated country, procedural law and the administration of justice are
centralized in the Federation. Judicial independence is guaranteed by the Constitution which also prohibits
forum shopping by requiring the courts to assign all cases to judges according to an assignment plan made
in advance. 38 The Austrian court system is very specialized, providing, in addition to the courts of
LAW LIBRARY OF CONGRESS – 38
39 F. Schwind and Fritz Zemen, Austria, in I INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW A 67 ( Tübingen, 1973).
40 HÜKG § 5.
41 OGH decision, Apr. 28, 1992, docket no. 4 Ob 1537/ 92, 34 ZfRV 32 ( 1993).
42 OGH decision, Jun. 19, 1997, 38 ZfRV 249 ( 1997).
43 Supra note 6.
44 Supra note 17.
45 Jurisdiktionsnorm [ Court Organization Act], August 1, 1895, RGBl no. 1895/ 111, as amended, § 3.
46 Currently, old AusserStrG, § 14; E. Feil, VERFAHREN AUSSER STREITSACHEN 236 ( Wien, 2000); as of Jan. 2005, new AusserStrG,
§ § 53 and 62.
47 Currently old AusserStrG , § 19; Feil, supra note 46, at 237. Verfahren ausser Streitsachen 237 ( Wien, 2000); as of Jan. 5, 2005,
new AusserStrG § 110 in conjunction with its § 79.
ordinary jurisdiction, special courts for labor disputes and administrative matters, while constitutional
issues are decided by the Constitutional Court. 39
Hague Convention requests are adjudicated by the courts of ordinary jurisdiction, in non-contentious
proceedings. 40 These family court proceedings tend to be even more inquisitorial than
Austrian proceedings in general, thus allowing the judge much latitude in organizing the proceeding, while
requiring a less formal conduct by the parties. The judge decides what use is to be made of the youth
welfare offices to provide counseling, evaluations, or other services. The judge may also call for expert
testimony by child care professionals. However, in doing so, the judge must balance the desirability of
investigations with the obligation to speed the proceeding as much as possible, as is provided in the
Convention and the Implementing Statute. In the interest of speed, it is even permissible for the Austrian
court to deny a hearing. 41
In the past, Austrian case law justified procedural delays to protect the welfare of the child. 42
Since the judgment of the European Human Rights Court in the Sylvester case, 43 the Austrian Supreme